Lc\\£\ 

THE 

LAW SCHOOL 



OF 



HARVARD COLLEGE 



By JOEL PARKER. 



Which I wish to remark — 

And my language is plain — 
That for ways that are dark, 

And for tricks that are vain, 
The heathen Chinee is peculiar: 

Which the same 1 would rise to explain." 

— Truthful James in the Overland Monthly. 



NEW YORK: 

PUBLISHED BY HURD AND HOUGHTON, 

Cam6rt&jjc: KtbcrStlrc }9rcss\ 

1871. 



THE 



LAW SCHOOL 



OF 



HARVARD COLLEGE 



By JOEL PARKER. 

So fight I, not as one that beateth the air." 



NEW YORK: 

PUBLISHED BY HURD AND HOUGHTON, 

Camfirtlffle: fttbcrtftfce \BvtSi. 

1871. 



THE LAW SCHOOL 



HARVARD COLLEGE. 1 



Matters of personal privilege are said to be always in order, 
and personal privilege is often personal explanation. 

This paper asks attention to some matters pertaining to the 
history of the Law School of Harvard College, which must 
necessarily partake somewhat of that character. 

I am impelled to this course by two publications, appearing 
near the same time in the month of October, — the first a short 
article in the American Law Review, relating to the School, 
and the other a report of the Committee of the Overseers to 
the Board, upon the same subject. 

I have not inquired who was the author of the article in the 
Review. The responsible parties are the editors of that period- 
ical, which, in its Summary of Events, speaks in this wise: — 

" Harvard University. Law School. — For a long time the 
condition of the Harvard Law School has been almost a disgrace to 
the Commonwealth of Massachusetts. We say ' almost a disgrace,' 
because, undoubtedly, some of its courses of lectures have been 
good, and no law school of which this can be said is hopelessly bad. 
Still, a school which undertook to confer degrees without any pre- 
liminary examination whatever, was doing something every year to 
injure the profession throughout the country, and to discourage 

i " At the instance of the Law Faculty, the Corporation have passed a declaratory- 
vote in order to correct a prevalent error respecting the name by which this depart- 
ment of the University is known." . . . . " The true and legal name of the 
School is not, as many will have it, the Dane Law School, but ' The Law School of 
Harvard College.' " — President Walker's Report to (he Overseers, December, 1859. 
% 



4 THE LAW SCHOOL OF HARVARD COLLEGE. 

real students. So long as the possession of a degree signified noth- 
ing except a residence for a certain period in Cambridge or Boston, 
it was without value. The lapse of time insured its acquisition. 
Just as a certain number of dinners entitled a man in England to 
a call to the bar, so a certain number of months in Cambridge en- 
titled him to a degree of Baphelor of Laws. So long as this state 
of things continued, it was evident that the school was not properly 
performing its function. We were glad to learn, therefore, that the 
old system has been abandoned, and are glad to find convincing 
evidence of the fact in a circular just issued by the Faculty. The 
circular states that ' The degree of LL. B. will be conferred upon 
students who shall pass satisfactory examinations in all the required 
subjects, and in at least seven of the elective subjects, after having 
been in the school not less than one year.' The intention is, that 
the seven required subjects should occupy the student fully during 
one year ; the seven electives are meant to fill a second year. The 
required studies are designed to serve as an introduction to the elec- 
tives. Equivalents will be accepted from students who offer them- 
selves for examination upon subjects which they have studied 
elsewhere. Students who are not candidates for a degree can avail 
themselves of the advantages of the school to whatever extent they 
see fit." .... After stating the names of the Instructors the 
writer adds, " The learning and ability of these gentlemen warrant 
us in predicting that their labors will make the Harvard Law 
School what it ought to be." 

Had the author of the article been content to commend the 
new order of things, without disparagement of the old, or had 
the words of censure appeared to be a mere incidental, careless 
utterance, without intention to disparage, the matter might be 
passed without notice. But the declaration, that ' or a long 
time the condition of the Harvard Law School has been almost 
a disgrace to the Commonwealth of Massachusetts," stands at 
the head and front of the article ; and the phraseology, although 
not very clear or happy, seems to have been deliberately chosen 
as particularly expressive of the idea intended to be conveyed ; 
inasmuch as the writer repeats it, in order to show that that 
was just what he intended to say, — no more, no less. He did 
not mean to say that the School had been " hopelessly bad." 
" Still, a school which undertook to confer degrees without any 
preliminary examination whatever, was doing something every 
year to injure the profession throughout the country, and to 



THE LAW SCHOOL OF HARVARD COLLEGE. 5 

discourage real students. " " So long as this state of things 
continued, it was evident that the school was not properly per- 
forming its function." But " the learning and ability of the 
present corps of instructors warrant the prediction that their 
labors will make the school what it ought to be." 

These utterances present grave charges against the School 
generally, against the rules upon which it has been conducted 
ever since it was established, and, by implication at least, against 
some of its previous Instructors, who, it must be supposed, did 
not do what it is predicted the present will perform. 

If the writer knew whereof lie was discoursing he under- 
stood that the learning, ability, labors, or powers of the corps 
of instruction do not prescribe the rule for conferring degrees. 
The natural inference, therefore, from all that is said, is, that 
there has been something beyond the degree to impeach the 
School. 

Whoever may be the author, it is put before that portion of 
the legal profession who read the Law Review, with the en- 
dorsement of the editors of that magazine, — two young men, 
it is understood, who, about four years since, consented to re- 
ceive the honors of the School in the shape of a degree of 
Bachelor of Laws, without insisting upon a preliminary exam- 
ination to show that they deserved them. The extent of the 
injury to the Profession, thereby, is, perhaps, not yet ascer- 
tained. 

It will not do to assume that the plea of the man, who, being 
sued for slander, set up as a defence, that he was well known, 
and therefore no injury could arise from anything which he 
had said, can be applied to this case, and so the matter appears 
to admit of, if not to require, some notice. 

It is difficult, under the circumstances, to say which is most 
prominent in the article, the conceit which dictated it, or the 
entire lack of courtesy manifested by it. In fact, the two are 
so harmoniously blended, that they cannot be separated with- 
out impairing the effect derived from both in conjunction. 

But the conceit and the ill manners are comparatively un- 
important. A question, in regard to the truthfulness of the 
assertions, throws other considerations entirely into the shade, 
and it is proposed to examine them, in this respect, at the 
present time. 



6 THE LAW SCHOOL OF HARVARD COLLEGE. 

Having held the Royall Professorship for twenty years, termi- 
nating in 1868, and having been during that time, with the 
exception of a single term, Senior Professor, and thus, by the 
statutes, the head of the department, I may naturally be sup- 
posed to have some interest in the reputation of the school, to 
say nothing of my own. Others have an interest also. The 
other members of the Corps of Instruction during that time, 1 
and the relatives of those who were members previously, and 
who are now all deceased, 2 may perhaps be supposed to feel 
some interest in it, unless they deem it utterly beneath their 
notice. The members of the Corporation, also, from the or- 
ganization of the school to the close of the academic year 
of 1869-70, are, so far as appears, all embraced in the 
" long time " spoken of, and had some interest in the subject. 
If the School has been for " a long time, almost a disgrace to 
the Commonwealth," it has been an entire disgrace to the 
Corporation to permit such a state of things. It may be added, 
that all the past members of the School — especially those who 
have received this discreditable degree, conferred without pre- 
liminary examination, — cannot take much pride in their 
membership, if its character has been what is thus repre- 
sented. 

How others may have been affected by this slander, I do not 
know. For myself, along with a very deep sense of the injus- 
tice done to the Institution, I am inclined to mingle a degree of 
gratitude to the writer, as the language quoted seems to indi- 
cate that it may be expedient to say a few words respecting the 
School and my connection with it, which would otherwise 
never have been written. 

It may be said — it has been said, — " Why take any notice 
of such an article ; it will not harm you or the School. Quite 
true in reference to those who have any knowledge of the sub- 
ject. With them, the reputation of the School and of its past 
Instructors, was settled one way or the other before this ac- 

1 The other Instructors were Hon. Theophilns Pars us, Dane Professor from August 
1848, during the residue of the time ; Hon. Franklin Dexter, Lecturer 1848-49; Hon. 
Luther S. dishing, Lecturer 1848-51 ; Hon. Frederick A len, University Professor 1849- 
50; Hon. Edward G. Loring, Lecturer 1852-55; Hon. Emory Washburn, Lecturer 1855- 
56, University and Bussey Professor from 1856; Hon. Richard H. Dana, Jr., Lecturer 
1866-68. 

Hon. Henry Wheaton and Hon. Edward Everett, appointed Lecturers on the Law of 
Nations in 1848 and 1854 respectively, died without taking their seats. 

2 Stearns, Story, Ashmun, Greenleaf, and Kent. 



THE LAW SCHOOL OF HARVARD COLLEGE. 7 

cusation came to defame it. But there are others who will see 
the charge, and who do not know ; some of whom may, per- 
haps, be reached by a refutation, even if others cannot be. 

Besides, I have had good occasion to be assured, since I 
commenced this paper, how few persons are to be found, after 
the lapse of a single generation, who have personal recollections 
of Law Schools, or even very definite traditional knowledge ; 
while the few items which have been committed to type and 
paper, in Town Histories, or brief biographical memoranda, 
and even newspaper paragraphs, furnish nearly all the accessible 
information, and must be taken for truth. 

If other materials now exist, in this case, for the formation 
of a correct judgment, this article, if it is now permitted to 
stand without contradiction, may, in a few years, be regarded 
as an important allegation, influencing the opinion which is to 
be formed respecting the state of the School, prior to its publi- 
cation ; and if, perchance, half a century hence, some plodding 
legal antiquary, raking among the rubbish (which is the ap- 
propriate occupation of an antiquary), should unearth the 
Law Review of October last, and find, among its mouldy 
pages, this article on the Law School, and an inquiry should 
in that way be raised, in the Antiquarian College, how it could 
be possible that such a state of things could be tolerated and 
continued, and curiosity should thereupon direct an investiga- 
tion of the College catalogue, to ascertain the names of the In- 
structors, and the corporate members who suffered it to fall into 
such apparent disrepute ; I prefer, that in the further inquiries 
which it is to be hoped will result from this pursuit of useful 
knowledge, the investigators may find, already collected, the 
facts which will serve to prove the falsity of the charge, and to 
erase from their minds the memory of this ink-spot. It can 
hardly be expected that their zeal and perseverance will be 
sufficient to induce them to collect the scattered materials 
which furnish the proofs. 

The Law School of Harvard College is not the oldest Law 
School in the United States, but it is probably the first which 
was connected with a literary institution having authority to 
confer degrees. 

In the catalogue of law schools, in the American Almanac, 
a Law department in William and Mary College, Virginia, is 



8 THE LAW SCHOOL OF HARVAED COLLEGE. 

stated to have been founded in 1782 ; but I have not been able 
to find anything farther respecting it, in that century. It may 
have furnished lectures on law to the college classes, or some of 
them, but it can at that time hardly have had the character of 
a Law School. 

The earliest school for legal instruction, in this country, so 
far as I am at present advised, was that at Litchfield, Connec- 
ticut, founded in 1784 [in 1782, it is stated in a catalogue 
published in 1831], by Tapping Reeve, Esq., afterwards 
associate and chief justice of the Superior Court of that 
State. He was sole principal until 1798, when, on his ap- 
pointment to the Bench, Hon. James Gould became associated 
with him. Judge Reeve died in 1823, at an advanced age, 
having retired from the school in 1820 ; from which time 
Judge Gould continued it alone, for several years ; after which 
Jabez W. Huntington, Esq., became an assistant. This 
School had great and deserved celebrity. At the Harvard 
Law School celebration in 1851, Hon. Charles G. Loring spoke 
of his attendance at the Litchfield School, in 1813, then at its 
zenith, when there were " more than sixty students, from all 
parts of the country, every State in the Union being there rep- 
resented." The catalogue of 1831 shows fifty-four students in 
1813, the largest number in any single year. It was discon- 
tinued in 1833, in consequence of the failing health of Judge 
Gould, who died in 1838, having had on its roll over one 
thousand students, many of whom afterwards became eminent 
in political and judicial life. Probably no Law School has had — 
perhaps I may add ever will have — so great a proportion of dis- 
tinguished men on its catalogue, if for no other reason, because 
attendance upon a Law School was then the rare exception, an 
advantage attained in general only by very ambitious young 
men, and because there was then much less competition for the 
offices and honors to which they aspired. 

In an "advertisement" prefixed to the general catalogue of 
the school, published by the students in 1831, it is said, 
" According to the plan pursued by Judge Gould, the law 
is divided into forty-eight Titles, which embrace all its impor- 
tant branches, of which he treats in systematic detail. These 
Titles are the result of Thirty years' severe and close appli- 
cation The lectures which are delivered 



THE LAW SCHOOL OF HARVARD COLLEGE. 9 

every day, and which usually occupy an hour and a half, em- 
brace every principle and rule falling under the several 
divisions of the different Titles. These principles and rules are 
supported by numerous authorities, and generally accompanied 
by familiar illustrations. Whenever the opinions upon any 
point are contradictory, the authorities in support of either 
doctrine are cited, and the arguments advanced by either side 
are presented in a clear and concise manner, together with the 
Lecturer's own views upon the question. In fact, every ancient 
and modern opinion, whether overruled, doubted, or in any way 
qualified, is here systematically digested. These lectures, thus 
classified, are taken down in full by the students, and after 
beino- compared with each other, are generally transcribed in a 

more neat and legible hand These notes thus 

written out are, when complete, comprised in five largo 
volumes," &c. 

It is evident that some allowance must be made, in regard to 
the extent and completeness of the work, even at that day. 
But this account serves to confirm, — what I had before under- 
stood, — that Judge Gould read from his manuscript, pausing for 
the students- to write out the principle or rule stated; which 
was very well at that day, when there were few elementary 
treatises, but no one would commend it for adoption at the 
present time, when text books have multiplied ad infinitum. 
And at this day no one, within an hour and a half each day of 
a whole course completed in fourteen months, including two 
vacations of four weeks each, could fairly begin to do what it 
is thus said was accomplished. 

Mr. Huntington held examinations every Saturday, upon the 
lectures of the preceding week, consisting " of a thorough in- 
vestigation of the principles of each rule," with " frequent and 
familiar illustrations, and not merely of such questions as can 
be answered from memory without any exercise of the judg- 
ment. 

A Moot Court was held, at least once in each week. 

The precise method of instruction by Judge Reeve, I have 
been unable to learn, but infer, from such information as I 
have, that his lectures were accompanied by more of colloquial 
explanation. 

In an account of the organization of the Law School of 



10 THE LAW SCHOOL OF HARVARD COLLEGE. 

the New York University, published in the Law Reporter, 
September, 1828, it is stated, that no " institution of a similar 
character ever existed in that State, than that which was under 
the charge of the learned Chancellor Kent, from 1793 to 1798, 
it having then been interrupted by the appointment of that 
distinguished jurist to the bench." 

From the minute details respecting the organization of the 
new school, it would seem that the article must have had a 
New York origin, and that the writer should have had full 
means of knowledge respecting the subject-matter ; but it 
appears that there must be some mistake. I can find no trace 
of such a school. The Chancellor before his accession to the 
Bench was appointed Professor of Law in Columbia College, 
and may have delivered lectures on law to the college stu- 
dents ; but the College seems to possess no evidence of a Law 
School there at that time. After his retirement from the Bench 
in 1823, the Chancellor, as Professor of Law, delivered lec- 
tures in the College, which were the foundation of his celebrated 
Commentaries, but there was no Law School at that time. 
The Catalogue of the Institution dates the existence of its Law 
School from 1858, without any suggestion that there had been 
any such school there previously. 

The Law School which for a few years flourished at North- 
ampton, in this State, had its origin in the private enterprise of 
Hon. Elijah H. Mills, a counsellor in extensive practice, and 
Senator in Congress ; and of Hon. Samuel Howe, a judge of the 
Court of Common Pleas. Messrs. Mills and Howe had been 
partners in practice, before the appointment of the latter to the 
Bench in 1821. In 1823, they commenced this School. Mr. 
Mills delivered some lectures, but his other avocations, and his 
ill health, prevented his giving much attention to it. The 
greater part of the instruction was by Judge Howe, who had 
been a pupil in the Litchfield School. 

In 1827, John Hooker Ashmun, Esq., then a partner with 
Mr. Mills, was associated with Judge Howe in the School ; and 
after the death of the latter, in 1828, continued it until his ap- 
pointment as Royall Professor, in the School of Harvard College, 
in 1829. There were between sixty and seventy students in 
it, during the short period of its existence. 

The methods of instruction were lectures read by Judge 



THE LAW SCHOOL OF HARVARD COLLEGE. 11 

Howe, of which the students were permitted to take copies, 
oral lectures of which they might take notes, and recitations. 

Mr. Ashmun heard recitations. "Coke upon Littleton was 
thoroughly studied." Mr. Webster said of this, as a text-book, 
" A boy of twenty, with no previous knowledge on such sub- 
jects, cannot understand Coke. It is folly to set him upon such 
an author. There are propositions in Coke so abstract, and 
distinctions so nice, and doctrines embracing so many condi- 
tions and qualifications, that it requires an effort not only of 
a mature mind, but of a mind both strong and mature, to un- 
derstand him. Why disgust and discourage a boy by telling 
him he must break into his profession through such a wall as 
this." — Nevertheless Coke on Littleton very regularly suc- 
ceeded Blackstone, as the second text-book of that day. 

Next in order comes the Law School of Harvard College. 

The earliest endowment of which this School has the benefit 
is derived from the will of Hon. Isaac Royall, a gentleman who 
resided in Charlestown before and up to the time of the Revo- 
lution, and who was a representative and councillor for many 
years under the colonial government. He did not sympathize 
with the Revolution, but took no active measures against it. 
Leaving the country for Halifax, and then proceeding to Eng- 
land, his estates were taken possession of under the confiscation 
acts, of which he complained bitterly, declaring that his sailing 
for Halifax was not voluntary, and that he had been prevented 
from returning solely by ill health. That he did not permit 
his indignation totdestroy his attachment to the country, was 
made manifest by his will, executed in 1779, in which, along 
with other bequests to public objects here, he devised to Har- 
vard College more than two thousand acres of land, to be appro- 
priated " towards the endowing a Professor of Law in said 
College, or a Professor of Physic or Anatomy, whichever the 
Corporation and Overseers shall judge best for its benefit," — 
with power to sell the lands, and devote the income of the 
money to the purpose. 

The laud was sold. In 1815 the Royall Professorship of 
Law was established on this foundation ; and the next year 
Hon. Isaac Parker, Associate Justice of the Supreme Court, 
was chosen Professor. By some mismanagement, as I have 
heard, the nature of which I did not learn, the fund amounted 



12 THE LAW SCHOOL OF HARVARD COLLEGE. 

to less than $8,000, the income of which, $400, Judge Parker 
received as his salary. But his duties required him, I think, 
only to deliver fifteen lectures to the Senior Class. He resigned 
his Professorship in November, 1827. 

In May, 1817, on the suggestion of Judge Parker, it is said, 
the Law School was established, and Hon. Asahel Stearns, a 
counsellor of eminence, was elected University Professor of 
Law. The School was placed under his charge. Judge Parker 
appears to have had no connection with it, except that the 
students were admitted to his lectures to the Senior Class. 
The compensation to Professor Stearns was the tuition fees 
paid by the students. It was a School of small beginnings, its 
first class numbering three ; and it is not surprising that it did 
not flourish. The School at Litchfield was then in high repute, 
and had long before attracted the few persons from this section 
who felt able and willing to attend a School of the Law. In- 
struction in that mode was an anomaly, lawyers' offices being 
in most instances the resort for a novitiate. The School at 
Northampton was a rival, with a distinguished and popular 
advocate as one of its instructors, nominally, and to some 
extent, actually, — and with a Judge as the other instructor, 
enthusiastic, and encouraged by success. Perhaps I may add 
that some of the law offices in Boston and elsewhere have 
always welcomed students, on account of the assistance they 
render in copying papers, and other office labors. There were 
no funds. Two rooms of medium size, one of which contained 
a small library, — with the privilege of hearing the lectures on 
law to the Seniors, — was the endowment. It is not wonder- 
ful that Professor Stearns was discouraged, — if he was not 
disgusted. He resigned in April, 1829. 

In June of that year the Corporation was enabled to reor- 
ganize the School on a better endowment. 

Hon. Nathan Dane, a learned counsellor at law in Beverly, 
and a gentleman of distinction otherwise, having been for three 
years a delegate in Congress under the Confederation, and on 
the committee ' which reported the ordinance for the govern- 
ment of the Northwestern Territory, — said by some to have 
been its author, — made a donation of ten thousand dollars, the 
income of which, and of such other funds as he might there- 
after add, was to be appropriated to the endowment of a Pro- 



THE LAW SCHOOL OF HARVARD COLLEGE. 13 

fessorship of Law. He prescribed the duties of the Professor, 
in part, which were " to prepare and deliver and to revise for 
publication a course of lectures on the five following branches 
of Law and Equity, equally in force in all parts of our federal 
republic, namely, the Law of Nature, the Law of Nations, 
Commercial and Maritime Law, Federal Law, and Federal 
Equity, in such wide extent as the same branches now are, and 
from time to time shall be, administered in the Courts of the 
United States." And he requested that Mr. Justice Story 
might be appointed the first Professor. The donation was 
accepted, and the appointment made accordingly. He after- 
wards added five thousand dollars to the fund, in the manner 
hereafter stated. 

Mr. Ashrnun, of the Northampton School, was immediately 
afterwards appointed Royall Professor. It is not necessary to 
suppose that this appointment was made with a design of put- 
ting an end to that School, because the eminent qualifications 
of Mr. Ashrnun fully justified the selection for other and better 
reasons. But the Northampton School terminated then and 
there. 

The new Professors were formally inaugurated in August, 
1829, and the School, with these more encouraging prospects, 
entered on its new life, with twenty-four students in its first 
year. 

Mr. Ashmun's connection with the School was closed, by his 
death, in April, 1833, and Professor Simon Greenleaf, a mem- 
ber of the bar in Maine, distinguished for his critical discrimi- 
nation of legal principles, and at that time reporter of the 
decisions of the Supreme Court, was appointed to succeed him. 
Judge Story held the office of Dane Professor until his decease 
in 1845. Professor Greenleaf, who had been appointed Dane 
Professor on the death of Judge Story, resigned July, 1848. 

Hon. William Kent, who had been Professor in the Law 
School of the New York University, was elected Royall Pro- 
fessor in 1846, but held the office only one year. From his 
resignation until the spring term of 1848, the school was in the 
hands of Professor Greenleaf, with some lectures by two or 
three young men who had recently been members of it. 

In 1832, a building was erected for the accommodation of 
the School, and called "Dane Law College." It is the part 



14 THE LAW SCHOOL OF HARVARD COLLEGE. 

of the present Dane Hall occupied for offices and by the text- 
books. 1 That part which contains the general library, and the 
lecture-room, was added in 1844-45. 

E>rom 1829 to 1848, with the chairs of Instruction and Gov- 
ernment filled by such eminent jurists, with the accommoda- 
tions provided by the new Hall and its addition, and with a 
library increasing at such a rate that in a few years the like 
was not to be found in the country, — we might confidently sup- 
pose that the School had been a success ; and it was thought, 
during that period, and for a " long time " afterwards, that it 

was so. 

Its numbers increased slowly, with occasional falling off 
until 1837, from which time, having become more extensively 
known, the increase was steady and rapid, until at January 
term, 1845, the number of students was one hundred and sixty- 
five, the highest number prior to 1848. 

Up to the academic year 1838-39 there were three college 
terms in each year, and the attendance from April, 1832, ac- 
cording to the Steward's books, ranged from eleven at Decem- 
ber term 1832, and twenty-six and twenty-seven in 1834 and 
1835, to fifty-three in December, 1833, fifty in December, 1835, 
and sixty-six in December, 1837, falling again to forty-six,. 
April term 1838 ; the average number during that period 
being forty-one and a fraction. 

From January, 1839, to January, 1848, there being two 
terms in each year, the lowest numbers were sixty-nine, and 
seventy-seven, near the commencement of the period, — the high- 
est one hundred and sixty-jive, and one hundred and fifty-one, in 
1845-46 ; the average attendance being one hundred and twelve 
and a fraction. 

The method of instruction by Professor Ashmun was in 
general by recitations, with explanations where necessary ; that 
of Judge Story by lectures, interspersed with occasional ques- 
tions. I have understood that sometimes he examined a half 
dozen or so of students, whose names were given in for exami- 
nation. He did not hear recitations. Professor Greenleaf fol- 
lowed, in general, the method of Judge Story, with somewhat 
more of precision in it. Whatever may have been the extent 

1 Mr. Dane aided in the erection of this part of the building, by a loan. See post. 



THE LAW SCHOOL OF HARVARD COLLEGE. 15 
/ 

and result of recitations and examinations, the degree was in 
no way dependent upon them. 

Moot courts were held every week, and the usual aid and 
assistance given on inquiries by the students. A list of books 
for a course of study and reading was made up, which was 
enlarged from time to time. It cannot strictly be said that this 
course was prescribed, for nothing was exacted. The annual 
reports on the School, prepared by the Professors (and which 
the Presiden incorporated into his report to the Overseers), 
from 1830 to 1837, after stating the number of the students, 
closed uniformly with these words : " Their attendance upon 
the exercises has been hitherto wholly voluntary, and has been 
marked by a punctuality and by a degree of advancement 
highly satisfactory. The opportunity of pursuing the study 
of the profession at the school is considered as a privilege, and 
the students themselves are understood to have been well satis- 
fied with the arrangements." 

From 1837 to 1846, the reports contained the same state- 
ment, With the interpolation after the word " privilege," of 
these words, " which is more and more highly estimated as its 
value becomes extensively known." The reports of the Presi- 
dent being regularly printed, and distributed among those con- 
cerned in the government of the Institution, and to others also, 
and no objection appearing to have been made from any quar- 
ter, here is plenary proof that the policy which adopted the 
voluntary principle as the basis of government and instruction, 
was, during all these years, not only satisfactory, from the first, 
to those for whose benefit the School was designed ; that the 
advantages of the School were more and more appreciated the 
more they became known ; and that so far as appears, those 
who had the immediate administration of its affairs, and all 
others who were interested, were entirely satisfied with its 
success. 

The Law Reporter for October, 1838, said of it : — 

" The prosperity of this school is, we believe, unexampled in this 
country. Ever since its first formation it has increased in popu- 
larity and usefulness, and under the management of its present 
professors, its success has been wonderful." 

In the report of the School for 1837-38, it is noted that the 



16 THE LAW SCHOOL OF HARVARD COLLEGE. 

\ 

students were from eighteen different States of the Union ; the 
next year they were from nineteen ; the next twenty-two ; and 
after that " from nearly all the States in the Union ; " and in a 
notice of the School, in the Law Reporter for November 1843, 
it is said, that, — 

" It is in conformity with the desires of the distinguished pro- 
fessors that the Law School is not regarded as a local institution 
teachino- the law of a particular state, but as national in its charac- 
ter and dedicated to those great rules and principles of jurispru- 
dence which are of equal authority in each and all of the States." 

If further evidence w T ere desired respecting its character, and 
of the high estimation in which it was held, it may be found in 
a report of the proceedings of a Law School Festival, in August 
1845 (8 Law Reporter, 145), in which distinguished lawyers, 
judges, and statesmen, united to do it honor. 

Here I pray that it may be noted, that I have traced the 
School from its inception to the year 1848, and I confidently 
appeal to my readers to join me in the conclusion that it had 
then faithfully performed its duty and exceeded the most san- 
guine anticipations of its friends. I shall do no injustice to any 
other in saying, that at the opening of that year it stood among 
the law schools then in existence, first, as I believe, in date, — 
first in numbers, — first in success, — and, of course, first in use- 
fulness. It was then an Institution in which any State might take 
a just pride. There was then no learned Dogberry to consign 
it "into everlasting redemption," by an allegation that it was 
" almost a disgrace." Thus far, at least, the past is secure. 

My connection with the School arose from the unsolicited and 
unexpected act of the President and Fellows, in August, 1847, 
tendering me the chair of the Royall Professorship, then made 
vacant by the resignation of Professor Kent, — an offer which 
was promptly declined, — afterwards, on urgent representations 
by President Everett, accepted, and the appointment con- 
firmed by the unanimous vote of the Board of Overseers. 
But I had no experience, nor even knowledge of the details of 
the service to be performed, as the President well understood ; 
and on taking my seat, at the March term, 1848, having had 
no leisure for any preparation whatever, I encountered difficul- 
ties which seemed formidable, and were certainly embarrassing. 

When I entered upon my duties I found that the topics which 



THE LAW SCHOOL OF HARVARD COLLEGE. 17 

formed the subject matter of the lectures for a two years' 
course, had been divided between Professors Greenleaf and 
Kent, the year before ; that Professor Kent's course devolved 
on me ; and to my dismay, Shipping and Admiralty was 
upon my list for that term. My residence in the interior of a 
State which had had but one port, the business of which was 
nearly all transacted in Boston, had given me no occasion to 
become acquainted with that branch of the law, and I tried in 
vain to escape by an exchange. Professor Greenleaf's answer 
that he was then in the middle of his topics for the course, 
showed that he could not comply with my request. So, frankly 
stating the difficulty, I told the students I would study the 
text-book with them. 

But there was another difficulty, of a more general character. 
It was understood to be my duty to deliver a certain number 
of lectures, and to hold a certain number of Moot Courts, be- 
side taking a share of the general superintendence and man- 
agement of the School. I had listened to one lecture and the 
half of another, by Professor Greenleaf, in which with great 
ease, he expounded the principles of the branch of the law then 
under consideration, occasionally interspersing questions to the 
students. How far he followed, directly, the text-book before 
him, was not apparent. 

The practical difficulty which met me, in the outset, arose in 
this way. I was to deliver a lecture upon a certain topic, and 
was at liberty to interpose as many questions as I pleased ; 
but there was a text-book, twenty, or thirty, or more, pages of 
which, furnished the foundation of the lecture. The students 
were supposed to have read this portion of the text, in antici- 
pation of the lecture, and to be reasonably acquainted with the 
contents. Confining myself within these limits, how was I to 
proceed ? It was not expedient for me to state the propositions 
in the words of the text. The students were acquainted with 
them already. It would be of little advantage to vary the 
phraseology, and state the same principles in different formulas. 
If the text-book was a good one, how was I to deliver a lecture 
without a " departure," which lawyers well know is, in pleading, 
obnoxious to a special demurrer. I might escape the dilemma 
by asking questions, but that was, to that extent, turning my 
lecture into a recitation by the students. I availed myself 



18 THE LAW SCHOOL OF HARVARD COLLEGE. 

largely of my privilege, however, and having made an earnest 
request to the students to ask me any questions on their part, 
they availed themselves of their privilege. The School was at 
that time a very strong one, many of the students being on 
their last term. And so we had for some time a lively inter- 
change of interrogatories. It was not difficult to perceive that 
the students were disposed to try the new Professor, and I 
enjoyed it, for, having been fifteen years upon the Bench, I felt 
much more at home in answering questions, than I did in de- 
livering Law lectures, properly so-called. 

In this way I gradually found my way out of my embar- 
rassments, having come to the conclusion that text-books were 
not the perfection of Law lectures, and that it would be no de- 
parture from a true lecture to subject the book to a rigid criti- 
cism, traversing its propositions if they were unsound, — qualify- 
ing them if the principle were stated too broadly, — suggesting 
exceptions, where they existed, — amplifying those parts where 
brevity had limited the statement too closely (not, perhaps, a 
very common fault), — and referring largely, in some instances, 
to contradictory decisions. 

An illustration occurs to me, as I write, perhaps as marked 
as any which could be selected. Coming to the part of the 
text-book on Bailments, which treated of the question whether 
a common carrier can limit his liability, by a notice to the owner 
of the goods that he will be answerable only for negligence, or 
by an agreement with the owner that he should be so answer- 
able only, — the suggestion was natui'ally made that they could 
not rely upon the text, nor upon the decisions referred to in the 
notes, because the extraordinary responsibility of the carrier, — 
that of an insurer, with certain exceptions, — did not arise from 
contract, and therefore was not governed by the law which reg- 
ulated contracts in general, but was, as they had been called to 
note, imposed upon him by the policy of the law, for the reasons 
stated, — that the carrier could not relieve himself from this re- 
sponsibility by a notice that he would not be bound by the rules 
of the law, even if such notice were given directly to the owner, 
— but this policy of the law did not prevent the carrier from 
makino- an agreement with the owner, for a more limited re- 
sponsibility, which would be binding on the owner — nor from 
makino- reasonable rules for the government of his business 



THE LAW SCHOOL OF HARVARD COLLEGE. 19 

in" relation to the times of receiving goods, for notice of con- 
tents of packages, respecting payment, &c, and that notice 
of such rules would impose upon the owner the duty of com- 
plying with them, — adding however, that the decisions were 
contradictory, and the practitioner must carefully ascertain 
what were the doctrines held by the Courts in the State where 
he resided, and govern himself accordingly. 

Recapitulating the principles stated in the text, to some 
extent, where they appeared to be sound, in order to cover the 
ground by a connected discourse, and resorting to the method 
which I have stated where the matter appeared to call for it, I 
preferred, where I fould shape them to advantage, to put cases 
illustrative of the subject matter, for the answers of the 
students, instead of questions directly upon the text-books. 

Suppose a client should state his case thus , what would be 

your opinion, or what would you advise him ? In this w;ay 
the student made a practical application of what he had read 
and heard. 

Where there was no suitable text-book, which was thought to 
be a fact in some instances, I had, of course, to state and main- 
tain my own propositions. 1 

But there came, in time, a new difficulty respecting questions 
of any sort, — and that was in obtaining answers to them without 
consuming too much of the time assigned to the lecture, — arising 
mainly from a fear, on the part of the student, that the answer 

1 If it had occurred to me, at that time, to turn to the account of the organization 
of the Law School of the New York University, published in the Law Reporter 
some ten years previously, to which I have referred, page 9, I might have been 
relieved from some of my embarrassment, or at least have had some earlier assurance 
respecting the course which my experience marked out for me. But at that time I 
had probably not read the article, and it certainly did not occur to me to seek a solu- 
tion of my difficulties in that quarter. It is there said: — "The mode of instruction 
contemplated by the plan is by oral lectures illustrating and exp'aining a previously 
prescribed text reading, and by examinations thereon. In regard to this mode of in- 
struction, we most cordially agree with Professor Butler, that the 'most useful kind 
of Law lectii'es is that which is designed to elucidate a preparatory course of text 
reading, previously assigned to the student, and to impress on his mind and memory, 
its leading principles:' and that 'the oral lecture is not only far more attractive and 
inciting, but it furnishes the opportunity of supplying the defects of the text-books, 
and of giving much useful information which would never be incorporated in a written 
lecture. The speaker not being confined to the precision of written language, nor to 
strictly scientific examination of his subject, and his great object being to expound 
and illustrate the Text reading, he ma}' select such topics as are most important, and, 
when necessary, may amplify and repeat, in a manner which may be very useful to 
his hearers, but which would not be allowed in written composition.' " 



20 THE LAW SCHOOL OF HARVARD COLLEGE. 

might be wrong, — and an erroneous answer, made in the face of 
the whole School, was a subject of dread. There would doubt- 
less have been less of this on questions directly upon the text- 
book, although in that case the facility of obtaining answers 
will naturally vary considerably at different terms. 

A school of this kind thinks for itself, and feels for itself, to 
a very great degree. Of course its opinions and feelings, its 
moods and humors, vary more or less with the changes of its 
material. I speak of the general tone and temper of a school. 
At one time there are a few strong, confident young men, of 
more than average mental powers, and they give it a lead 
which makes the school generally of that character. At 
another time the average runs very even, and the school is 
studious and thoughtful, with no remarkable demonstrations. 
At another, very estimable young men, but inclined to 
timidity, have acquired the respect of their associates, and, in 
the absence of strong natures, the lead is that way. All this is 
very natural. We know how a few reckless, daring spirits, 
unless effectually checked, will give a lead and a tone to almost 
any school. The influence holds good in other respects. 

If it might be supposed, that the difficulties and perplexities 
which I have stated were wearing away as my first term pro- 
ceeded, I was not approaching a state of ease and comfort. 

In June, Professor Greenleaf's health failed, and he left the 
School, and the city, to seek rest and repose elsewhere, tender- 
ing his resignation, to take effect at the close of the term. He 
had probably a premonition of that disease of the heart which 
suddenly terminated his life, in 1853. 

The School was thus left wholly on my hands for the 
remainder of the term, with an experience of something more 
than three months to direct me. 

Upon a new division of topics in the course of the vacation, 
with Professor Parsons, who succeeded Professor Greenleaf, I 
was desirous of retaining Shipping on my list, in the hope that 
my studies on that subject, during the last term, might avail 
me somewhat in another course of lectures ; but the answer 
that his practice had been in Boston, and that branch of the 
law a specialty, could not but be admitted as a conclusive 
reason why I should give it up ; as I did also the other text- 
book which had served as the basis for my other course of 



THE LAW SCHOOL OF HARVARD COLLEGE. 21 

lectures; so that I entered on my second term with the 
necessity of entire new preparation so far as lectures were con- 
cerned. 

With the loss of Professors of large learning and experience, 
and a high reputation as instructors, and the substitution of 
those who had no experience whatever, it was impossible that 
that the attendance should not diminish. 

The new administration closed its first term in January, 1849, 
with one hundred students on its roll, which, however, was a 
larger number than was in attendance at the term closing in 
July, 1847. The number did not increase until the third year 
afterwards, but held, with the exception of one term, at nearly 
that number. 

And here I may note an illustration of my remarks in relation 
to changes in the moods and phases of the School. Being deeply 
impressed with the value of Moot Courts, as a means of instruc- 
tion, I proposed, at this first term of the new administration, to 
double the number, so as to hold two each week, which was 
assented to, and that course adopted as a Faculty regulation. 
The plan worked well for a time, — the students were eager to 
take their turns as counsel, and prepared their cases with great 
zeal. But in the course of a few years a change came over the 
spirit of the dreams of their successors, the interest flagged, and 
then came a term at which it was difficult to find students who 
were entitled to act as counsel, and who were willing to be 
retained, and I yielded very reluctantly to a proposition to 
change the rule. The School changed afterwards, but I could 
never procure its restoration. 

The precise mode of lecturing adopted by my associates, 1 
am unable to state, but suppose that the general method of 
instruction in the School, taken as a whole, however it might 
differ in minor details, was not essentially different from that 
which had been in use by our predecessors. 

The mode of instruction adopted by the Litchfield school 
was well adapted to the time when it was instituted and 
attained its greatest success. But the multiplication of text- 
books and digests, in the half-century which succeeded, had 
rendered it inappropriate. It was no longer the business of 
students to make manuscript texts and digests for themselves. 
The multiplication of decisions rendered it impracticable to 



22 THE LAW SCHOOL OF HARVARD COLLEGE. 

collect and explain all, or even the most important of them, 
and an attempt to follow that course would have been not 
merely unwise, bat positively pernicious. While it answered 
well in the age when cases were comparatively few, when 
Mansfield and Ashhurst, Buller and Grose had just been set- 
tling in a court of law some of the great principles which lie at 
the foundation of commercial jurisprudence, and those principles 
had not been traced into their minute ramifications, — it would 
now, in my opinion, with the immense addition of cases and 
arguments which the books furnish, fill the mind of the student 
with a mass of material which he may readily find elsewhere 
when he has occasion for it, — which, if he were to attempt to 
memorize it in the School, — however he might classify it, — he 
could never readily apply to the infinite variety of human 
transactions in the minute variations which might present 
themselves in his practice ; and if he did not become merely a 
" case lawyer," as those are called who have only a recollection 
of cases, he would be, at best, a digest of matter which he could 
not apply with the necessary facility. No small part of the 
education of the legal student is to learn how to study, — to 
learn that the law, as a whole, is, necessarily, a mass of principles 
and rules applicable to various interests, rights, obligations, and 
duties, many of which relate to a single branch of those 
interests or rights, — as the principles which govern the acquisi- 
tion, possession, and transfer of real estate, the law which 
regulates the rights and duties of Principal and Agent, and the 
law of Bills of Exchange ; while other principles and rules have 
a much wider application ; that in relation to these last, it is 
often a most difficult inquiry to ascertain which of different 
principles governs a particular case ; and that there are, 
besides, distinctions continually presenting themselves requiring 
a very nice and accurate discrimination. 

But I am not writing a treatise on the study of the law, my 
object being, merely, to justify, if I may, that course of instruc- 
tion which leads the student to the acquisition of a knowledge 
of the great principles which lie at the foundation of jurispru- 
dence, — to an investigation of the relations of the different 
principles to each other, — and to their practical application, — 
instead of a course which leads to the collection of a large num- 
ber of legal propositions, and to a digest of cases. 



THE LAW SCHOOL OF HARVARD COLLEGE. 23 

The course of instruction which comes nearest to the attain- 
ment of the result which I have indicated is the best course. 

Recitations, however well adapted to the education of chil- 
dren, and even to young men in the Academic department, and 
however perfect they may be, will not make lawyers. That 
they may be used to some extent is not to be doubted, — but 
they should be auxiliary, and not principal. 

Neither will lectures make lawyers. But it is more impor- 
tant that the Instructor should tell the students of a Law School 
what he knows which is not contained in the text-books, than 
that they should tell him what they know is to be found there. 

Of the success of the school from January 1848 to January 
1868, I may not speak, except by furnishing a few data for ex- 
amination, and for comparison between the periods prior and 
subsequent to January 1848, and by a reference to the reports 
of the several Presidents of the College. 

From January 1848, to January 1858, the lowest numbers 
were seventy-four, and eighty-eight, the highest one hundred and 
forty-three, and one hundred and fifty, the average being one 
hundred and one. From 1858 to 1868, the lowest numbers 
prior to the war were one hundred and nine, and one hundred 
and twenty-six, the highest one hundred and sixty-seven, and 
one hundred and seventy^six ; during the war the lowest in 
1862, and 1863, were sixty-nine, and seventy-nine, the highest 
one hundred and twenty -six, and one hundred and thirty -six ; 
after the war the lowest were one hundred and nineteen, and one 
hundred and twenty-eight, the highest one hundred and sixty- 
eight, and one hundred and seventy-seven, the largest number 
ever in attendance ; — average during the whole period, near 
one hundred and twenty-nine ; average, deducting the period of 
the war, one hundred and forty-four. 

A comparison of averages, omitting the earlier years of the 
two periods, gives from 1842 to 1844 one hundred and eleven ; 
from 1844 to 1848 one hundred and thirty two ; from 1853 to 
1862 one hundred and twenty-seven, and after the war, from 
July 1865 to January 1868, one hundred and forty-eight. 

One other comparison. The aggregate of the highest num- 
bers for any six terms prior to 1848 was eight hundred and 
forty eight, average one hundred and forty-one ; the aggregate 
of the highest numbers for six terms after 1848 was nine hun- 



24 THE LAW SCHOOL OF HARVARD COLLEGE. 

dred and eighty-nine, average one hundred and sixty-five, lack- 
ing one. s 

If it be said, that there was an increase of population and 
wealth within the last period, it must be said also, that there 
was a great increase of Law Schools, — quite as many commer- 
cial convulsions, which always affected the School, — that after 
the slavery agitation in 1854, the attendance from the Southern 
States did not increase, and on the opening of the war, with one 
or two exceptions, ceased entirely. There had been an average 
of nearly thirty students from that section. Besides, the war 
drew heavily from the School to recruit the armies of the Union. 
In January 1860 the attendance was one hundred and seventy- 
six, in July 1862 sixty-nine ; in January 1866 one hundred and 
seventy-seven. 

We have seen very clearly what the character of the School 
w r as up to 1848. 

If the data already given are not sufficient, on which to de- 
termine whether its character after that time rendered it ob- 
noxious to the charge which has been brought against it, refer- 
ence may be had to the proceedings at the celebration of the 
Story Association formed by the students of the School in 1851. 
Again, eminent men, judges, counsellors, statesmen, and schol- 
ars assembled within its walls, 1 to participate in its festivities. 

Once more. — The annual reports of the different Presidents 
of the College, to the Board of Overseers, on the state of the 
different Departments of the College, if they may be supposed 
to place them in the most favorable light, must also be supposed 
not to contain any statements which were contrary to the re- 
ceived reputation of any Department. 

I may not quote from the report of President Everett, made 
in January 1849, in relation to the changes which occurred in 
1848. It was very natural that it should be complimentary, 
and may be so received. 

In December of that year, President Sparks's report said, — 
" The school continues to retain the confidence which the pub- 
lic has so largely bestowed upon it, and which is justified by its 
present numbers and general prosperity." 

In his report in 1852, he said, — " The Law School has exhib- 
ited steady proofs of growing prosperity. It is believed that 

1 See Boston Daily Advertiser, July 21, 1851. 



THE LAW SCHOOL OF HARVARD COLLEGE. 25 

the attendance on the lectures, application to study, and the 
deportment of the young gentlemen connected with the school, 
have at no period been entitled to higher approbation." 

President Walker, who had been for nearly twenty years a 
member of the Corporation, and for fifteen years Professor in 
the Academic department, said of it, in his first Presidential re- 
port, in 1853, " This school has become a national institution. 
Not a third of its present members are from Massachusetts and 
but little moi*e than half from the New England States." 

His report in 1854, contains this clause, — " The Law School 
continues to flourish, as will appear from the details given in 
the Appendix. The number of students was larger last year 
than at any former period, as was also the number of graduates. 
Notwithstanding the increased expenses of living, the pressure 
of the times and other adverse influences, the number of 
students in attendance has fallen off but little, standing at pres- 
ent at one hundred and forty-three. They are drawn, as here- 
tofore, from almost every State and territory in the Union. To 
sustain the character and reputation of the school, and to in- 
crease or even to retain its present numbers, it is believed that 
more superintendence and instruction are required than can be 
given by two Professors." 

In 1855 his report was, — " Though from various causes the 
number of students has fallen off a little, almost every State in 
the Union is still represented in the Law School, and the spirit 
prevailing there was never better than at present." 

In 1856, — " The Law School is still resorted to by students 
from every section and from almost every college in the United 
States. Its Faculty has been strengthened, and its means of in- 
struction and superintendence materially extended, during the 
past year, by the institution of a third Professorship and the 
appointment of Ex-Governor Washburn to the new chair." 

His report for 1857 says, — " The Law School is in a flourish- 
ing condition." 

In 1858, — " The Law School, notwithstanding the multipli- 
cation of similar institutions throughout the country and the 
flourishing condition of several of them, has not declined either 
in numbers or usefulness." 

In 1859, — "The Law School is in a more flourishing con- 
dition than at any other former period, numbering at present 



26 THE LAW SCHOOL OF HARVARD COLLEGE. 

one hundred and seventy-eight students drawn together from 
every part of the country." 

Next come the reports of President Felton. In 1860, he 
says, — " The Law School has not only maintained but sur- 
passed its former prosperity. As has been already mentioned, 
the students have been drawn from twenty-nine States. They 
have pursued their studies with exemplary diligence, and while 
the discords of the country have been increasing, they have lived 
in uninterrupted harmony. The Law Library needs to be en- 
larged, and it is hoped that a Professorship of Roman Law may 
be added to its means of instruction." 

In his report for 1861, President Felton has to note the fact 
that, " The Law School has been somewhat affected by the 
state of the times." He adds, " A considerable number of Law 
students usually come from the Southern and Western States, 
and this circumstance has given that department of the Uni- 
versity a beneficent influence upon the whole country, and 
that influence will be felt again the moment peace is restored. 
Notwithstanding these drawbacks the school has been well at- 
tended, and the young men have devoted themselves to their 
studies with unusual earnestness and success." 

Assailed by the accusation which has given rise to this paper, 
the School is entitled to the benefit of these annual commenda- 
tions. 

If the reports of President Hill do not contain similar mat- 
ter, the reason may, perhaps, be found in the fact that his re- 
ports treated more of additions and improvements which were 
desirable in the Academic, than of the existing state of things 
in any department of the College. 

Notwithstanding the secession of Southern students, and the 
multiplication of Law Schools, this School was at the height of 
its prosperity, as regards the number of students in attendance, 
and the number of degrees, in the latter part of the time while 
he held the Presidency. 

The design of the school, as announced in its early circulars, 
was to afford a complete course of legal education for gentle- 
men intended for the Bar in any of the United States, except 
in matters of mere local law and practice. 

We have seen that in 1843 it was not regarded as a local in- 
stitution, but as national in its character, — that in 1845, this 



THE LAW SCHOOL OF HARVARD COLLEGE. 27 

view of its character was sustained at the celebration on the 
enlargement of its Hall, — that in 1853, President Walker 
characterized it as a National Institution, subjoining proofs of 
the fact, and that similar proofs appear in subsequent Presiden- 
tial reports, from year to year. 

Notwithstanding the increase of Law Schools after 1848, 1 
and notwithstanding the agitation respecting slavery, its stu- 
dents for many years before the war came from near or quite 
two thirds of the States in the Union, with numbers from New 
Brunswick, and Nova Scotia, and not only so, but a large ma- 
jority of them were from other places than Massachusetts. 2 

It has been suggested as a reason why so many of its stu- 
dents were from other States, that the School has been exten- 
sively advertised. It has advertised the commencement and 
duration of its terms, with a direction to whom application 
might be made for catalogues and circulars, and through such 
applications, as well as by distributions by its students, it has 
extensively advertised the Academic Department by a circula- 
tion of the College catalogue. 3 Its best advertisements have 
have been the students who have gone forth from its walls to 
success and distinction in the ranks of the profession, and its 
large and very valuable Library. 

But I am not to overlook the fact that there is in the defa- 
mation something in the nature of a specification. The statistics 
thus presented, it is admitted, do not cover the whole of the 
accusation. The accuser is, to some extent, it does not pre- 
cisely appear to what extent, more specific in his charge. His 
language already quoted is, — " Still, a school which undertook 
to confer degrees without any preliminary examination what- 

i In ] 818 the number of Law Schools was nine, several of them in their infancy. 
In 1862 the)' had increased to eighteen, some of them in positions where they would 
necessarily affect this school, to some extent, more especially those whose degree gave 
admission to the Bar of the States, in which they were situated. 

2 Perhaps the critics may, upon reconsideration, be inclined to regard the School as 
" almost a disgrace " to the United States. 

8 " It is a gratifying circumstance that at the commencement of the present term 
twenty-six States were represented in the undergraduate department, —a larger 
number than were ever represented before, and larger by nine States than were rep- 
resented ten years ago, — and the members of the Law School represented twenty- 
nine States. Harvard College has grown from a provincial School to a national 
University, comparing favorably in point of numbers and courses of instruction 
with the" Universities of the Old World." — President Fetion's Report to the Over- 
seers, December, 1860. The question what addition to this representation of the 
States in the undergraduate department was made by the circulation of College cata- 
logues, and otherwise, by the Law School, does not admit of a precise answer. 



28 THE LAW SCHOOL OF HARVARD COLLEGE. 

ever, was doing something every year to injure the profession 
throughout the country, and to discourage real students." 
This then, so far as there is specification, is the reason why the 
school was "almost a disgrace to the Commonwealth." It is 
not assigned as the whole reason, but it seems to be advanced 
as the principal point. Whatever is beyond is left to conjec- 
ture. 

It is obvious to remark upon this, in the first place, that a 
degree, the conferring of which did something to injure the 
profession and discourage students, and by reason of which the 
school which conferred it was " almost a disgrace " to the State 
in which it is situated, could not have been a coveted distinc- 
tion, and the large increase of the number of graduates is 
something very remarkable. This very obnoxious degree was 
received in 1866 by sixty-nine students, and in 1867 by seventy- 
four, the largest numbers at any period since the institution of 
the School. Such a degree should, itself, have been regarded 
as a disgrace. 

The supposition that the accuser himself has received that 
obnoxious degree, which poisons the good name of the State, 
transcends any ordinary capacity of belief. He should have 
rejected it when tendered to him, very nearly, not quite, in the 
language of the state prison convict who, when the warden told 
him that if he would behave well during his term, he would, at 
its expiration, give him a certificate, replied, — " That would 
be a pretty travelling recommendation." 

If the writer of the article is really a graduate, the exploded 
rule of law, that no person should be admitted to stultify him- 
self, ought to be revived for his benefit. 

The critic must have known (as critics are presumed to 
know everything, and take good care by their confident opin- 
ions and assertions not to rebut the presumption), that the 
accusation, so far as it is founded on the degree without exam- 
ination, is an impeachment of the Corporation and Overseers, 
and not of the Faculty or of the School. The rule regulating 
degrees is in no wise under the control of the Faculty. The 
Law Professors in office when the rule was under consideration, 
may have been accessories before the fact, but their successors, 
who have administered it, cannot be charged as accessories, or 
aiders and abetters, for they have only performed their duty, 



THE LAW SCHOOL OF HARVARD COLLEGE. 29 

and that cannot be charged as an offence. Such Presidents as 
Kirkland, Quincy, Everett, Sparks, Walker, Felton, and Hill, 
and among the Fellows such lawyers as H. G. Otis, Charles 
Jackson, Joseph Stoiy, Lemuel Shaw, Charles G. Lorino-, B. 
R. Curtis, E. R. Hoar, and B. F. Crowninshield, have been 
art and part in adopting, or maintaining, the rule. It is these 
men, and others like them, who are accused of " doino- some- 
thing every year to injure the profession," and of making the 
Law School " almost a disgrace " so far as the degree is con- 
cerned in producing that result. 

" Mr. ," said Professor Ashmun to a very conceited 

student, — (there are such occasionally, — rare instances, I am 

happy to say), — " Mr. , what is the rule of law in such a 

case," — stating it. The student confidently said the rule was 

so and so. " Well, Mr. ," said the Professor, " of course 

you must be right, but this old fool of a Coke says the rule is 

directly the other way." And so these gentlemen, of the 

Corporation, said the rule should be that, which the critic says 
would have made the School a disgrace, had not some good 
courses of lectures interposed to save it from becoming abso- 
lutely bad, and left it only almost so. 

The Catalogue for 1829-30 contains the circular of the School. 
Before that the catalogue had only the names of the officers and 
students. The rule regulating degrees, as there set down, is, 
— " Gentlemen who are graduates of a College will complete 
their education in three years. Those who are not graduates 
will complete it in five years." This was in conformity with 
the rule of the Bar in Massachusetts, and some other States, — a 
rule recognized by the Courts, which admitted to practice on 
the recommendation of the Bar, — by which graduates were re- 
quired to study three years, and those who were not graduates 
five years, before admission. And under this rule of the Col- 
lege, students who commenced study in the School, and pursued 
the full course of two years, did not obtain the degree until 
they had studied the remainder of the term, either in the 
School or elsewhere. 

But this was applying the Massachusetts rule for admission, 
to students who came from States where a different rule pre- 
vailed, and in 1834-35 we find the rule of graduation to be — 
" The degree of Bachelor of Laws is conferred by the Uni- 



30 THE LAW SCHOOL OF HARVARD COLLEGE. 

versity on students who have completed the regular term of 
professional study required by the laws or rules in the State to 
which they belong, eighteen months having been passed in the 
Law School of this Institution." 

This, however, still left an inequality. Of two students who 
had studied eighteen months in the school, one could have his 
degree immediately, because the rule in his State required no 
longer term of study for admission to the Bar. The other, if a 
graduate, must wait eighteen months, and study somewhere 
during that term, because his State required three years for 
admission. If he had not an Academic degree, he must wait 
and study two years longer. The impropriety of making the 
degree depend on what transpired elsewhere, and especially 
upon inequalities arising under State rules and regulations, 
doubtless became apparent when it was further considered, and 
so we have another change, but one which was not entirely for 
the removal of all inequality. 

In 1839-40 we find the rule thus, "All students who have 
pursued their studies in the Law School for three terms, or 
eighteen months, or who having been admitted to the Bar, 
after a year's previous study, have subsequently pursued their 
studies in this School for one year, are entitled upon the certifi- 
cate and recommendation of the Law Faculty, and on pay- 
ment of all dues to the College, to the degree of Bachelor of 
Laws." 

This discrimination in favor of gentlemen who have been 
admitted to the Bar was doubtless intended to attract that 
class, and induce them to avail themselves of the benefit of the 
School. 

With a change which provides for the allowance of six 
months' study in another Law School having power to confer 
degrees, as a part of the eighteen months required, this rule 
stood for thirty years. 

Now I do not mean to say that this rule was the wisest 
which could be devised. That is, of course, an open question. 
And the rule having been changed so as to require an examina- 
tion, in order to attain the degree, that ought to be the better 
rule. Such being the opinion of those who now have the 
matter in charge, the change is well, although the question 
which is the better rule can hardly be settled, with any precis- 



THE LAW SCHOOL OF HARVARD COLLEGE. 31 

ion, because so many foreign elements will interfere with 
those upon which the question should be determined. See 
Appendix Note A. 

But I have to say, that considering the rule carefully, during 
my connection with the School, — because it was a subject re- 
lating to administration upon which at any time a representation 
might have been made to the Corporation, I came decidedly to 
the conclusion that no change was desirable. 

With the exception of the requisition of a certain term of 
study, the degree is honorary, and has been so understood by 
those conversant with the rule. It did not admit to the Bar, 
unless there was in some State, legislation to that effect, and in 
such case the fair presumption was that the act was passed 
with knowledge of the requirements of the School, and with 
a design to induce candidates for the profession to avail them- 
selves of advantages for the acquisition of legal knowledge, 
greater than they would have by the general course of ad- 
mission. 

Generally, however, where provisions exist by which the de- 
gree operates as an admission to the Bar, they are limited to the 
school or schools of the State, and intended for the encourage- 
ment of such schools, and in such cases as there is no examina- 
tion for admission to the Bar, it is quite proper that one should 
precede the degree. 1 

But in the absence of legislation giving to the degree the 
effect of admission, the degrees of a Law School differ mate- 
rially from the ordinary degrees of the Academic department. 
There the study for a term of years is not for the purpose of 
qualifying the student for a particular vpcation, to enter 
which he must pass a subsequent examination, on his college 

1 Such is the case in tbe Law School of Columbia College, which was established in 
1858, and had fifty students that year. In 1860, the Legislature of New York passed 
an act, by which graduates of the school are admitted to practice in all the courts of 
the State on receiving the College diploma. This was asked for on the condition that 
a course of two 3'ears' study should be required for the degree. There were two hun- 
dred and thirty students the past year. But one hundred and sixteen of these were 
from New York City, forty from other places in the State, thirty from New Jersey, and 
thirteen from Connecticut. And notwithstanding the deserved reputation of the 
School it may fairly be presumed that many of them were attracted by the operation of 
the degree as an admission to tbe Bar. 

It is understood also that the degree of the Law School at Cincinnati gave admission 
to the Bar of Ohio. Further than this I am not advised. Perhaps such provisions 
have a tendency to make local schools. 



32 THE LAW SCHOOL OF HARVARD COLLEGE. 

studies, by another authority. Whereas that is emphatically 
true of the student in the Law School, if he is required to pass 
an examination for his degree, and another for his admission to 
the Bar, — one for the honor, another for the practical result. 
He may like it. If so, there can be no reasonable objection. 

The tendency of legislation for many years past has been to 
give admission to the Bar, to all citizens of the State, twenty- 
one years of age, and of good moral character. Such is, by 
statute, the rule in some of the States, compulsory on the 
courts. No novitiate, whatever, is required. 

With such legislation, and such tendencies, if it is not the 
duty of the Law Schools to throw open wide their doors, and 
entice all who can be induced, to come in and avail themselves 
of their advantages, — offering the honors of the school, on time, 
without further examination respecting acquisitions, it is cer- 
tainly not an offence, to do so. Great benefit must result. A 
young man cannot well breathe the atmosphere of an active 
school, without learning something of the law. As a general 
rule, parties induced to join in order to obtain the degree, 
whether with or without examination, will understand their 
own interest, and labor accordingly. Idleness and negligence 
will be the exception. Examination as a requisite for the 
degree must have a tendency to repel those whose previous 
limited education renders them doubtful whether they shall be 
able to acquit themselves, satisfactorily, under such a test ; and 
these are the very ones it is desirable to reach. Some of them, 
— I think I may say the greater portion of the earnest ones, are 
quite as likely to avail themselves fully of the advantages 
which they possess, — to use what they acquire, in the further 
pursuit of professional knowledge, and in the successful practice 
of the profession, — as those who are anxious to be examined to 
obtain the diploma. There were from time to time ten, 
twelve, fourteen attorneys at Law, in the School, desirous to 
obtain the degree. How many of them would have come to 
be examined for it cannot be known. 1 

1 Rev. Dr. Peabody, as acting President, said in his report in 1862, speaking of 
scholarships in the Academic Department, — " But there is a large class of deserving and 
needy students who fall short of the rank which entitles them to scholarships. Among 
those who become our best scholars there are some who, not having enjoyed the pre- 
liminary training of schools of high grade, are not prepared, for the first months of their 
college course, to become successful competitors with those who are thoroughly fitted 



THE LAW SCHOOL OF HARVARD COLLEGE. 33 

For these and other reasons, I have been satisfied of the wis- 
dom of the learned men whose policy invited as many as would, 
to come and share the advantages of the School, — to acquire 
the knowledge how study should be pursued, and investigations 
made, and principles applied ; and how distinctions show dif- 
ferences leading to varied results, — rather than to memorize 
an indefinite number of legal principles, which dozens of text- 
books at the present day will furnish them, and which therefore 
they can commit to memory more thoroughly in the early days 
of their professional life. A young man may make himself a 
very respectable digest of legal propositions, with a very limited 
knowledge of the reasons why they exist, and of the methods 
of their use. 

The knowledge of forms, and of their practical application, 
is best acquired in an office. 

Thus much for the libel in the Law Review. 

A Report from the committee appointed to visit the Law 
School in the present year, and published, out of the usual 
course, in the Daily Advertiser, of October 17th, while it 
makes no charges, directly, against the previous administration 
of the School, may be thought to contain some implications of 
that character. It is as follows : — 

" The committee appointed to visit the Law School respectfully 
report : " — 

" That, in the discharge of their duty, they have, by committees 
of their number, visited the school and attended its exercises. They 
have also, in their own meetings, and in conference with the presi 
dent of the university, considered and discussed the prospects and 
needs of the school, and the various plans suggested for increasing 
its usefulness. Several of the suggestions which they had intended 
to make have been anticipated by the action of the law faculty and 

to enter college. There are o'hers who fall but little below the successful competitor*, 
and are futly their equals in industry and merit. There are yet others, destined to be 
able and useful men in after life, who commence their education at a late period, and 
cannot therefore become as accurate c'assical scholars as those who acquire the rudi- 
ments of the ancient languages in childhood, who yet attest their men'al capacity and 
vigor by their strong grasp of the subjects on which they are occupied in the last year 
of the college course." 

This description, with a slight variation, is, perhaps, quite as applicable to student* 
in the Law School, as to those in the Academic Department; and may be considered 
with reference to degrees, as well as to scholarships. 
3 



34 THE LAW SCHOOL OF HARVARD COLLEGE. 

of the corporation, especially that of procuring courses of lectures 
and instruction by gentlemen eminent in the active practice of the 
profession, from which the committee expect excellent results." 

" They are happy in being able to report generally that the school 
is animated with an excellent spirit, and that both what is now do- 
ing, and what it promises for the next years, is encouraging and 
satisfactory. 

" It is much to be regretted that the library, which was formed on 
a comprehensive plan, has not, of late years, kept up with the prog- 
ress of the law, and that its condition, as respects the preservation 
of the books, is not agreable to the lover of books, or the lover of 
learning. The attention of the law faculty is directed, as the com- 
mittee have reason to know, to some method for the better preserva- 
tion of the library, and for the more careful and systematic selection 
of books by purchase ; and it is much to be desired that such apian 
may soon be devised and carried into execution." 

" The committee also wish to express the opinion that the sys- 
tem of oral recitations, formerly in use, might with advantage be 
restored. It has seemed to them that a system of lectures, not as- 
sisted and enforced by recitations, is defective in theory, and not 
satisfactory in practice. The committee are happy to observe that 
systematic instruction in pleading, with written exercises, has been 
introduced, and they think that similar instruction, to some extent, 
in drawing other legal papers, might be of practical advantage." 

" The moot-courts are — as they have ever been — a most useful 
stimulant to the student, and are conducted with spirit and interest. 
It may, perhaps, be suggested, that the nearer a moot-court ap- 
proaches an actual court of law, especially in order and decorum, 
the more useful it will be as a preparation, and the less will the 
change be felt when the student takes his place at the bar. Applause 
from an audience is not calculated to produce the true style of legal 
arguments, which aims only at convincing the court ; and it is also 
to be desired, in considering the order of the room, that the student, 
when he first stands before a court — in the responsible position of 
conducting a real case — when he will need all his faculties to be 
undisturbed — should not find the observance of the ordinary rules 
of decorum to be a restraint by reason of their novelty. 

" For the committee, 

" F. E. Parker, Chairman'' 

There is something singular respecting this report. So far 
as I am aware, it is the only one, out of some fifteen or more 
which must have been made by the different visiting commit- 
tees, which has been supposed to require, or particularly to de- 



THE LAW SCHOOL OF HARVARD COLLEGE. 35 

serve, publication in this mode. Nothing is shown on the face 
of it, either in matter or manner, to indicate that the interest 
of the School required an extraordinary publication of this 
character. Nor do the subjects treated of appear to be of such 
public interest as to call for a newspaper circulation. 

But this is not for me to determine. It may be expedient 
that the public should be informed, in this mode, that the com- 
mittee, in meetings of their own, and in conference with the 
president, have discussed the prospects and needs of the School, 
— and that several of the suggestions which they had intended 
to make have been anticipated by the action of the law faculty 
and the corporation, especially that of procuring courses of lec- 
tures, &c. This last particular is the one that seems most to 
require an advertisement. 

But is it in the interests of the School that the public is in- 
formed that " it is much to be regretted that the library, which 
was formed on a comprehensive plan, has not, of late years, 
kept up with the progress of the law, and that its condition 
as respects the preservation of the books is not agreeable to 
the lover of books or the lover of learning." 

If in either of these respects there has been a neglect which 
has impaired the usefulness of the library, as it has existed 
heretofore, then it is but justice that the public should in this 
way be advised of the fact, and thus be put upon the inquiry 
whether the means of instruction are still sufficient. 

It is evident, however, that it was not as a " caution to the 
public," that this report was published. 

But it forms, perhaps, an appropriate supplement to the ar- 
ticle in the Law Review, which it closely succeeded, and may, 
like that, serve to herald the glory of the new order of things, 
by a little depreciation of the old, — and so I propose to add 
my mite to the extension of its circulation, but with the ad- 
dition of some matters, which it may be presumed that the 
portion of the committee which concocted the report " did not 
understand." 

Respecting the recommendation of a return to the system of 
oral recitations, I have nothing to add to what has been said, 
except that the Catalogue for the present year shows the ap- 
pointment of four additional instructors for the year, all of them 
as " Lecturers." 



36 THE LAW SCHOOL OF HARVARD COLLEGE. 

With the exception of a limited outfit, the school was a self- 
supporting institution, until Mr. Bussey's princely donation to 
the College, of the income of which it is the recipient in part, 
became available to some extent in 1861—62. 

The endowment of the Royall Professorship, the income of 
which until 1869 was accounted for by the college at five per 
cent. ($397.18), less than one seventh of the salary, for many 
years, has already been stated. 

We have seen that Mr. Dane's original foundation for the 
professorship which bears his name was $10,000. He after- 
wards lent to the corporation the sum of $7,000, to aid in build- 
ing a Hall, under an arrangement by which at the end of five 
years the sum of $5,000 was to be transferred to the endow- 
ment of the professorship, and the remaining $2,000 was to be 
repaid, which was done. 1 

The income of the fund of this professorship, which at first 
was credited to the school at $500, was thus raised to $750, at 
which it stood in the college books until 1867, — one quarter of 
the salary of the professor, for many years. The balance of the 
amount required to erect the original Hall ($3,667.20) was sup- 
plied from the general funds of the College. Thus the whole 
expense of the original structure (10,667.20) was defrayed by 
the College. 

There is a small fund, called the Foster fund, the income of 
which ($151.02) was received by the School every third year, 
it being distributed to the Theological, Law, and Medical 
schools alternately. 

With these exceptions the School until 1862 paid its own ex- 
penses. 

The enlargement of the Hall in 1843-44 costing $12,707.22, 
— the purchase of books for its library, which in August, 1848, 

i President Quincy, in his History of the College, says, — "In October 1841, Mr. 
Dane advanced the sum of $5,000 towards the erection of a Law college, and proffered 
a loan of $2,000 more in order to enable the corporation to proceed immediately to 
erect the edifice." And the Treasurer in his Statement for 1831-32 says,— " By funds, 
chiefly supplied by his [Mr. Dane's] bounty, a new Hall has been erected, combining 
offices for the professors," &c, — and again, " Hon. Nathan Dane has placed with the 
corporation the sum of $7,000, for the erection of a Law college." 

From these statements it would be inferred that Mr. Dane had made a donation of 
$5,000, at least, for that purpose. But the Treasurer's accounts show that the sum of 
$5,000, thus " advanced," or " supplied," was, at the end of five years, to be added to 
his original donation, to found his professorship, which was done, Mr. Dane receiving, 
it seems, five per cent, interest in the mean time. The sum of $2,000 was repaid to 
his executor. 



THE LAW SCHOOL OF HARVARD COLLEGE. 37 

had .cost $34,916.57, — the subsequent additions which will be 
stated, — the salaries of its officers, — premiums for disserta- 
tions, — with its other expenses, and some heavy extra charges, 
have been defrayed from its revenues. 

It received a large and very valuable accession of books, re- 
lating to Foreign, particularly Roman Law, from the bequest of 
Samuel Livermore, Esq., of New Orleans, who died in 1833. 
And it has been the recipient of numerous smaller donations of 
books, from other parties. 

Beyond this, so far as I am advised, until Mr. Bussey's 
bequest gave it an income, in the accounts of 1861-62, of 
$2,500.82, it has not been a tax upon the charity of the public, 
or the purse of the corporation. 

On the contrary it has been charged, for a number of years, 
with a percentage upon its receipts for tuition, for the use of 
the College Library by its students, and with a portion of the 
salary of the Assistant Steward, $100 or $500 per annum, for 
the services rendered in the Steward's office in receiving and 
disbursing its revenues. Against the tax for the use of the 
College Library the Professors remonstrated, — on the ground 
that it was greatly disproportionate to the use of the books by 
the law students, and that the School needed all its funds for 
the increase of its own library and other purposes, — and ob- 
tained some reduction. 

But a more serious draft upon its ability to provide for the 
increase of its library, resulted from an attempt to reduce the 
expenses of its students for board and rooms. Numbers of the 
students in the School were young men of limited means. 
Others were prevented from joining for a similar reason. There 
were numerous inquiries whether students could find employ- 
ment to enable them to pay expenses, and whether there were 
any funds to aid them. The Faculty appropriated the income 
of the Foster fund, received every third year, in aid of such 
students, by small appropriations toward the payment of the 
fees for tuition. But this was a very small matter. The Pro- 
fessors applied to the Corporation for authority to remit the 
charges for tuition, in special cases, and obtained leave for each 
Professor to nominate one student for remission, in considera- 
tion of such services as the student might perform, and author- 
ity for the Faculty to receive notes, payable when the promissor 



38 THE LAW SCHOOL OF HARVARD COLLEGE. 

should be able, for the tuition of six others. By applying this 
authority to credits for part of the tuition of several students, 
according to the exigency of each case, requiring the residue to 
be paid, it was made to operate as a relief to numbers, but* 
severally, of very small amounts ; and all this in no manner 
reached the expense of board and room-rents, which, with a 
large increase of students in the several departments, had in- 
creased in a greater degree. 

Believing that these expenses were too high, an attempt to 
reduce them was made in 1856 by the purchase, on Law School 
account, of the Brattle House, a hotel recently discontinued. 
This was done with the consent, and by the act, of the Cor- 
poration. 

President Walker, in his report for 1857, after saying that 
the Law School was in a flourishing condition, added, — " With 
a view to reduce the expenses of education at the School, the 
Brattle House has been purchased, by the Corporation, for the 
accommodation of the students, a much lower rent being 
charged for the rooms than has heretofore been paid for those 
obtained in the village, or in the college buildings. The base- 
ment and lower story have been rented to the keeper of a 

boarding-house," &c " The accumulated funds of the 

Law School have been invested in the purchase, and the whole 
establishment has been placed under the supervision and control 
of the Law Faculty. There has not, as yet, been sufficient op- 
portunity to determine how far this experiment will prove suc- 
cessful." 

Three or four years of experiment, however, settled that 
matter, resulting in disaster. The accumulated fund thus in- 
vested, amounting with interest for the year to $16,886.70, was 
lost, and the Treasurer's books showed a debit to the school in 
1860 of $17,299.21, which was subsequently reduced by a 
credit of $15,000 for the property. The school was thus de- 
prived of the means to make more than the necessary additions 
to its library, for several years. It was discharging its debt, 
when the war reduced its revenues, on the one hand ; and some 
income from the Bussey estate came to give timely aid, on the 
other. 1 

1 The scheme to purchase the Brattle House did not originate with me, nor did I 
make any of the calculations, hy which it was supposed to be shown, that it would not 



THE LAW SCHOOL OF HARVARD COLLEGE. 39 

Thus the library was not enlarged, as it might otherwise 
have been. But notwithstanding the reduction of receipts, by 
change of instructors, financial revulsions, and this absorption 
of its funds by the purchase of the Brattle House, it expended 
in the purchase of books for its library from August 1848, to 
August 1858, sums amounting to $8,406.77 ; and notwith- 
standing the loss occasioned by that purchase, and the diminu- 
tion of its revenues by the war, it expended for the same pur- 
pose, in the next ten years, $8,838.61, a total of $17,335.38 ; 
besides paying $13,812.50 toward the increase of the college 
library in the same time, exacted mainly because the college 
library could not get money enough in other ways. 

However desirable it might have been to make other pur- 
chases, certain it is that no serious inconvenience was sustained 
by the students, or any one else, by reason of any lack of ad- 
ditions. And I submit, that under the circumstances, the 
School is not to be charged, even by implication, with a dere- 
liction of duty in this respect. 

A special committee of the Board of Overseers, appointed 
in 1868, to whom the annual reports of the several Visiting 
and Examining committees were referred, with instructions 
to prepare a full account of the condition, needs, and prospects 
of the University, reported in February, 1869, on this part of 
their subject, — "The library of the school, though by no 
means complete, is supposed to be much the largest law library 
in the country. It numbers about thirteen thousand volumes, 
comprising all the American Reports and the Statutes of the 
United States, as well as those of all the several States ; a reg- 
ular series of all the English Reports, including the Year 
Books, and also the English Statutes ; the principal treatises 
in American and English law, together with a large collection 
of Scotch, French, German, and other foreign law, and of the 

entail any loss upon the School, but 'would furnish an income, — nor was I present when 
it was finally determined to make the purchase. But the attempt to lessen the ex- 
penses had my hearty support, — the purchase, my approval, on the representations 
which were made; my aid, such as it might be, was given to render it a success, and I 
do not shrink from my share of responsibility for the measure and its effects. The 
arrangement failed, partly from the fact that no person eminently qualified could be 
found to manage the concern, and partly because the partial measure of success which 
attended it, by reducing the rates charged elsewhere, tended, of itself, to pecuniary loss. 
This loss of the accumulations of the School in an attempt to render its advantages 
more accessible was a misfortune, but not even almost a disgrace. 



40 THE LAW SCHOOL OF HARVARD COLLEGE. 

best editions of the Roman or Civil Law, with the most cele- 
brated commentators on that law." 

" This does not look like great neglect. The members of that 
Committee, who may be supposed to be lovers of books and 
lovers of learning, do not appear to have discovered anything 
in the appearance of the library to call for special comment. 
They say, in closing their report upon the School, — ' l They 
[the students] come from every part of the Union, about 
twenty-five States, on an average, being represented each year ; 
so that there is no extravagance in regarding the School, thus 
constituted, as one of the instrumentalities that must help to 
promote a good understanding between the different sections of 
the country." 

Alas ! that it should have been, just at that time, and long 
previous, "almost a disgrace" to Massachusetts; and that a 
Visiting Committee should have discovered, in the very next 
year, that it was " much to be regretted that the library, which 
was formed on a comprehensive plan, has not, of late years, 
kept up with the progress of the law, and that its condition, as 
respects the preservation of the books, is not agreeable to the 
lover of books or the lover of learning ; " and that it was found 
expedient to inform the public, generally, of those facts. 

This brings us to the consideration of the latter part of this 
charge, — neglect as respects the preservation of the library. 

Notwithstanding " the attention of the Law Faculty is di- 
rected, as the committee have reason to know, to some method 
for the better preservation of the library," it may be expedient 
to consider the method of the past, in connection with its 
alleged results. 

Lovers of books are of two kind. One loves them for their 
nice appearance on the shelves, — for the uniform sizes in which 
they may be arranged, " all in a row," — for the fresh appear- 
ance of their backs (a little gilt adds somewhat to the affec- 
tion), — and for the evidence, if they have been used, that it 
has been by dainty fingers. 

It is certainly desirable, that they should not be used by 
dirty fingers. But in a large library, many of the books used 
only at intervals, longer or shorter, dust will accumulate, fin- 
ger-glasses are not among the ordinary appurtenances, nor has 
each man who examines them a wash-bowl at his elbow ; and 



THE LAW SCHOOL OF HARVARD COLLEGE. 41 

so the fingers do become soiled with a little dust, which, being 
partially transferred to the books, offends the visual organs of 
this lover of books. 

Another loves them for the treasures of learning and knowl- 
edge which they contain, and for their capacity of transferring 
their stores of learning into the possession of those who study 
them, to be used for the promotion of the welfare and happi- 
ness of mankind. 

Lovers of learning are generally of this latter class, and they 
know that books cannot be diligently read and studied, by hun- 
dreds of young men, for ten, twenty, thirty, forty, or fifty 
years, as the case may be, without becoming soiled, worn, 
even dilapidated. Leaves will become loose, and covers will 
break : — 

" 't is true, 't is pity, 
And pity 't is, 't is true." 

Presuming that there has not been any material change in 
the appearance of the books since my resignation, in January, 
1868, I point to their worn appearance with pride, as an evi- 
dence that they have been diligently appropriated to the pur- 
pose for which they were designed, and that they have given 
their efficient aid in sending a knowledge of the law into nearly 
all the United States, New Brunswick, Nova Scotia, and other 
places, some of the isles of the sea included. 

Doubtless some injury may have occurred, which could have 
been avoided by more careful handling. That is but an ordi- 
nary incident to the use of books by many persons. 

Bat many of these books, used with all due care, have had 
a longer and a harder service than some of the persons to whom 
their appearance is not agreeable ; and may therefore be held 
excused if they look a little more worn. 

The care and preservation of the library is not a new subject 
with me. 

Uniform practice, heretofore, from the commencement of the 
School, has been to give the students free access to the books in 
the library, for use in the library-room, and the privilege of 
taking volumes to their rooms on having them charged by the 
librarian. This is no more than the usual privilege accorded 
to students in offices. It is, if not absolutely essential, at least 



42 THE LAW SCHOOL OF HARVARD COLLEGE. 

of great convenience in the preparation of cases for the Moot 
courts, and facilitates the progress of their general studies. 

This freedom of use subjects the books, of course, to wear, 
and dilapidation of binding, to an occasional loss of a text-book, 
or other elementary work, and sometimes, out of course, to 
depredations of a larger amount. An instance of the latter 
character occurred many years since. At the opening of one 
of the terms, the janitor brought to my office some twenty 
volumes on which there had been an attempt to deface the 
stamps on the covers, and the labels, which showed that they 
were the property of the School. Whether conscience, or 
parental intervention, or fear of detection because something 
of the marks remained on most of them, caused the restoration 
is unknown. It was understood to be a case of property re- 
turned, " no questions asked." Although the attempt had been 
so far unsuccessful, that the books could not have been used 
without danger of detection, an order was immediately given 
to procure a suitable stamp, and to stamp many of the leaves 
throughout all the volumes of the library, so that the evidence 
of ownership could not be destroyed without tearing out the 
leaves, which it was supposed must prevent similar attempts in 
the future. But in 1861, the librarian became suspicious that 
some one was stealing the books. Efforts were made to detect 
the supposed offender, without success, and the librarian, a 
nervous man, became quite excited on the subject. In this 
state of affairs there came a visitation. 

Prior to 1861 there had been a visitation of the law library, 
from time to time, by a sub-committee of the committee ap- 
pointed to visit " The Libraiy," under a notion that " The 
Library " included all the libraries of the different depart- 
ments. Some countenance had been given to such an idea, by 
the fact that in annual catalogues, and other publications where 
it was desirable to make a show of the possession of large 
numbers of books, the " University Library " was made to 
include the College library, the libraries of all the professional 
Schools, the Astronomical library, and even the Society libraries 
of the students. But when it was said, on the same page, " the 
Library is always closed on Saturdays," the College library 
alone was intended. And when the Overseers appointed one 
committee to visit " The Library," as a department of the Col- 



THE LAW SCHOOL OF HARVARD COLLEGE. 43 

lege, another committee to visit the Theological School, another 
to visit the Law School, and another the Medical School, it 
was quite apparent that the committee to visit " The Library " 
was not a committee to visit the libraries of the Theological, 
Law, and Medical departments, because upon the committees 
severally charged with visiting those departments devolved the 
power and duty of visiting their Libraries ; which could not 
then have been supposed to need two visiting committees, in 
each year. The library of the Law School is no more a part 
of " The Library," than Dane Hall is a part of Gore Hall. 

The Treasurer, in his annual Statements of his accounts, has 
an account with " Library," which uniformly means the Col- 
lege library, and when a percentage was deducted from the 
receipts for tuition in the Law School, for " The Library," the 
Law School library never had any of the benefit of it. It was 
directly the reverse. 

So far as I now recollect, the committee to visit the Library 
never undertook the duty of visiting the libraries of the Schools, 
but in some instances, how often I cannot say, sub-committees 
have been detailed for that purpose. Such a sub-committee 
probably visited the library of the Law School several times, saw 
the Librarian, might or might not have seen some of the Pro- 
fessors, and nothing more was heard about it. Whether the 
librarians of the day made written reports to the sub-com- 
mittees before 1861, I have no knowledge. But in that year a 
sub-committee came, and finding it to be term time, the library 
in daily use, and so not presenting the order and neatness of 
the general library, and no report of the librarian ready, made 
a somewhat curt report to the general committee. As soon as 
the vacation came, the librarian hastened to make the desired 
report to the sub-committee, in which he estimated the loss of 
books for the year at one hundred volumes, adding, " Since a 
number of volumes reported missing at the last examination 
were found in their places, it may be expected that many of 
the missing volumes may be returned." But he concluded, 
that the means taken for the security of the library were in- 
sufficient, winding up that part of his report with the extrava- 
gant remark, " How the books can be best preserved and the 
working character of the library maintained, is a question of 



44 THE LAW SCHOOL OF HARVARD COLLEGE. 

some difficulty ; but an immediate answer is called for, or the 
losses will soon render the question an idle one." x 

Upon this report, the general committee appointed a special 
committee, which had an interview with the Professors, who 
stated the difficulties attending any other arrangement than 
that which had prevailed since the organization of the School, 
but asked the committee, if they could, to devise some plan for 
better security. The special committee made a report in which 
they expressed the opinion that further provision ought to be 
made for the security of the library. They said " Every 
special library requires special regulations. Perhaps the most 
frequent use of this library by students is in the preparation of 
their moot-court cases. For this purpose they must have 
entire freedom to range through the library, take down what- 
ever book they choose, and consult it at their pleasure. This 
privilege cannot be abridged, and rules must be made to con- 
form to this necessity. The learned Professors think that such 
freedom necessarily endangers the security of the books. Your 
Committee think otherwise, — provided proper regulations are 
made and enforced to meet the emergency. Such regulations, 
however, have not been made and enforced ; and the surprise 
of your Committee is not that so many books are missing, but 
that so many remain." They recommended that the library, 
when open, should never be left without an attendant, whose 
duty it should be to keep it in order, and see that the regula- 
tions were enforced ; that the text-books be called in as often 
as once within each year, and a thorough examination be 
made ; that shelf-lists be immediately prepared which should 
exhibit an exact inventory of the library ; that the responsi- 
bilities of the librarian be increased, and those of the janitor 
diminished ; and that the Professors impress upon the minds of 
the students, practically as well as theoretically, the fact that 
the books are property, and that to take one surreptitiously was 
a dishonorable and an immoral act, ■ — doubting whether, with 
present usages, that truth could be taught in any other way 
than by punishment, — all which was published, along with the 
report of the Committee on the Library. 

The Faculty being clearly of opinion that the adoption of the 

l Whether the suspicion of depredations which gave rise to this excited remark, 
was founded on fact, is not known. A subsequent examination rendered it doubtful. 



THE LAW SCHOOL OF HARVARD COLLEGE. 45 

first and fourth recommendations would cost more than would 
be saved, were not inclined, in the then state of the funds, to 
make the changes recommended; on the second and third, 
made such provisions as seemed suitable ; and having, from time 
to time, for years previously, performed the duty recommended 
in the fifth, without punishing transgressors, made no change 

in that particular. . 

In the autumn of 1862, the Professors, in their report to the 
Committee of the Overseers appointed to visit the School, laid 
the whole matter before them, and received their emphatic ap- 
probation of the course pursued. _ 

In the mean time, however, a sub-committtee of the Com- 
mittee to Visit the Library that year, had come again The 
librarian then reported to them that five volumes of those re- 
ported missing last year had been returned, - that the missing 
books for the year amounted to nineteen volumes - that the 
recommendations that were made by the special committee 
-were found to involve a much greater expenditure than i 
would take to supply the missing volumes, and the financial 
condition of the School did not warrant a large outlay for the 
purpose of enforcing 'practically as well as theoretically 
sound views on the rights of ■ property ' ; " and that the actual 
yearly loss of text-books was no larger than that of other 
libraries of the same circulation. 

But the sub-committee, in their report, which was submitted 
to the Overseers in February, 1863, admitting that the loss 
shown during the year was not so great as the cost of providing 
additional supervision would have been, persisted in their stric- 
tures in relation to the management of the library on this 

P °De'eming this hardly just to the Faculty and not quite 
decorous to the Committee appointed to visit the School the 
Faculty, on the occasion of the next visit of that committee, 
reported upon the whole subject; suggesting a question re- 
specting the jurisdiction of the Committee on the Library, as 
w P el as" making a defence on merits. This report may be 
found in the A^endix. See note B. The Visiting Committee 
acain sustained the course adopted, and it was understood 
w & ould so report to the Overseers. The reports of this com- 
mittee were not published, as were the reports of the sub-corn- 



46 THE LAW SCHOOL OF HARVARD COLLEGE. ' 

mittee on the library, and I never saw their report which was 
presented in January, 1864, nor had any knowledge of its par- 
ticular contents, until long afterwards. Under existing circum- 
stances my modesty permits me to place it along with the 
report of the Professors in the Appendix. See note C. The 
sub-committee came not, after that, to my knowledge, and so 
that matter ended. 

In the report of the special committee of 1861 (submitted in 
1862), when they supposed that one hundred volumes had been 
lost during the last year, they say: "The number of books 
missing, large as it is, indicates a higher degree of moral prin- 
ciple among law students than young gentlemen pursuing their 
professional studies are commonly supposed to possess. It is 
safe to say, that even no theological library in the land could 
maintain its integrity, under similar circumstances." 

In a report of the sub-committee of 1863 (submitted in Jan- 
uary, 1864), when the librarian's report showed but five vol- 
umes missing during the year, the sub-committee " are glad to 
be able to say, that either the morals of the school or the man- 
agement of its library, or both, have decidedly improved during 
the last academic jear." 

As there had been no very material change in regard to the 
management of the library, the morals of the students are en- 
titled to the full benefit of the compliment ; and the interest- 
ing problem is presented, — if, with one hundred books sup- 
posed to be stolen in one year, the morals of Law compare so 
favorably with those of Theology, what must be the relative 
'condition of the two when Law loses only five volumes a year? 

The means for the increase of the library are now ample. 
The income from the Bussey fund is greatly enlarged. The 
income from the Royall, Dane, and Foster funds, has been in- 
creased by the allowance of a greater interest by the college, 
and the contribution to the College library appears to have been 
abolished. See Appendix D. 

The means are also sufficient to provide for its security, and 
the methods for its better preservation, to which the Visiting 
Committee of the present year seem to have referred, appear to 
be in full operation. The usage of the School, which for forty 
years gave the students free access to the books in the general 
library, — a privilege which the Professors deemed, if not es- 



THE LAW SCHOOL OF HARVARD COLLEGE. 47 

sential, highly valuable, and of which even the special commit- 
tee, in 1862, said, " The privilege cannot be abridged, and 
rules must be made to conform to this necessity, " — has itself 
been made to conform to some other necessity, and the students 
are now fenced off from access to the books, except as they re- 
ceive them from the hands of the librarian, or his assistants. 
They can therefore rest assured that their morals are secured 
thus far ; and if a sufficient number of wash stands, with their 
appurtenances, shall be provided, the new additions may be 
preserved, to some extent, in such condition as to be agreeable 
to that class of the lovers of books, who think more of their 
covers than they do of their contents. 

In relation to instruction in Pleading, had it been entirely 
omitted, it could hardly be charged as in any degree a disgrace 
to a. Commonwealth, which by legislative enactment has per- 
emptorily reduced the forms of personal actions at law to con- 
tract, tort, and replevin, — and in such actions abolished the 
whole system of pleas, replications, rejoinders, surrejoinders, 
rebutters, and surrebutters, and issues arising therefrom, — re- 
quiring a simple answer to the plaintiff's allegations, no further 
pleading being required after the answer, except by order of 
court. 

Other States have gone still further, and amalgamated the 
pleadings in equity with those at law ; informal statement on 
one side, and informal answer on the other, being the recog- 
nized procedure. 

But the study of Pleading is not unimportant, and was not 
neglected. It formed part of the regular course, with Stephen* 
and part of Chitty as text-books, and a reference to Stearns on 
Real Actions. Lectures were regularly given in the course, 
and, on request, instruction in that branch, at times when the 
topic was not in the order of the term. I may perhaps be per- 
mitted to say of it, that the instruction was given by one who 
had had some practical experience in that branch of the law. 
And with the tendencies of modern legislation it may be 
doubted whether " old fogies " of that description will not soon 
be scarce. 

An attempt was made, also, to introduce drafts of declara- 
tions, but I was very soon convinced that a Professor, who gives 
out cases for drawing declarations, if any large number of the 



48 



THE LAW SCHOOL OF HAEVAED COLLEGE. 



students shall furnish drafts not conformed to the accredited 
precedents, will be likely to find that he has more occupation in 
determining how far a departure from those forms may extend, 
without subjecting the pleading to a special demurrer, than will 
be profitable to himself, or of great advantage to the students. 

Recognized forms exist at the present day, covering almost 
all common cases in Pleading, and of other legal instruments, 
and it is safer to follow them where they exist, as every depart- 
ure may give rise to a question whether the pleading or other 
instrument is sufficient, or what are its meaning and effect. 

Very little of unusual matters of pleading can be taught by 
instruction through forms. It must be by teaching the princi- 
ples which govern their construction. 

If it is supposed that the young lawyer, rising to address the 
Court or jury will fail in the performance of his duty, because 
there are no cheers to encourage him, or that making one good 
point in his case, he cannot so well make another, having missed 
the applause which has invigorated him in a Moot-court, it is 
undoubtedly advisable to put an extinguisher upon the applause 
there. The administration of the School which came into ex- 
istence in 1848, and found the custom in use among the stu- 
dents, did not deem the matter of sufficient importance to be- 
stow much thought upon it, certainly did not conclude that it 
was pernicious. 

But if this ought to be prohibited, there are other things de- 
serving of consideration. The presence of his fellow-students 
in the Moot-court is an incentive to exertion, on the part of the 
counsel there, as well as their applause ; and the question 
comes, if it be supposed that on appearing in court he may fail, 
because he lacks the applause to which he is accustomed, and 
that is therefore abolished, may it not be feared that he may 
fail as disastrously, when he is not only no longer sustained by 
the attendance which encouraged him in the Moot-court, but 
finds a new " sea of up-turned faces " greeting his first appear- 
ance in a new forum. In truth the danger lies here, and when 
applause is no longer permitted, ought not provision to be made 
so that he may have as much of the old surroundings as is pos- 
sible. If a committee of the " old familiar faces," as large as a 
visiting committee of the Overseers, cannot be sent to surround 
the new-fledged lawyer in order to inspire his bosom with con- 



THE LAW SCHOOL OF HARVARD COLLEGE. 49 

fidence, and nerve him for his first struggle at the Bar ; may it 
not be practicable at least, upon notice that a graduate is about 
to make his maiden speech, to order out a sub-committee to sit 
in his ej'e, and supply, thus far, the old stimulus ; or may not 
an arrangement be made, by which a Professor shall be detailed 
to sit by the side of the judge, with a smile of encouragement, 
which is not always to be found upon the bench. 

If there is any weight in the suggestion of the committee, 
the new temple should be as much like the old as may be prac- 
ticable, and as the Moot-court cannot be made a Court of Jus- 
tice, the latter should take the similitude of a Moot-court. 

Really, if this suggestion did not come from a dignified 
source, it might provoke to mirth and laughter. But the sub- 
ject must be quice too grave and solemn for that. 

Let the Faculty, and the Corporation, and the Overseers, look 
to it. 

4 



APPENDIX. 



NOTE A. See page 81. 

The course of study announced in the Circular of the Law School 
for 1870-71, comprises several "Required studies," and eighteen 
" Elective studies ; " and the " Subjects of instruction " during the 
Academic year 1870-71 include all of the required studies, and 
eleven of the elective. 

Of the Degree it is said, — " The degree of Bachelor of Laws will 
be conferred upon students who shall pass satisfactory examinations 
in all the required subjects, and in at least seven of the elective 
subjects, after having been in the school not less than one year." 
But it is added, — " The seven required subjects " " are intended to 
occupy the student fully during one year ; the seven elective sub- 
jects, which are further necessary for a degree, are intended to fill 
a second year." 

The student may have his degi'ee if he can pass examination at 
the end of a year. But as the seven required subjects are intended 
to occupy him fully during one year, and as " candidates for a 
degree who begin their studies in this school are expected to 
devote their first year to the required subjects," how is the student 
to be qualified to pass an examination, at the end of that time, in 
the seven elective studies, which are further necessary for a degree, 
and which are intended to fill a second year. Of course he cannot 
be expected to crowd the labors which are intended to fill two years 
into one. 

The examination is to be " of a thorough and searching character." 
Of course it must be, if it is to give value to the degree. An ex- 
amination which regularly turns by no one, but finds all the candi- 
dates qualified in the fourteen studies, is little better than a sham 
and a delusion, because it proves nothing, — somewhat nearer being 
almost a disgrace, than the practice of granting the degree, on time, 
without any examination, because in the last case there is no hollow 
pretence about it. 



APPENDIX. 51 

If, however, the student has studied the seven elective subjects 
before he enters the school, he may attain the honor at the end of 
his first year. But as " the seven required subjects are designed to 
be the beginning of the course," and " to serve as an introduction 
to the elective studies," he will reverse the order intended, and 
begin at the other end. 

Equivalents may be accepted from those who have studied else- 
where, but what equivalent can be accepted for the required studies, 
which must be supposed to lie at the foundation of legal learning. 

The practical operation of the rules would seem to be, that 
gentlemen who commence their studies out of the school, and begin 
at the wrong end, may present themselves for examination after 
having studied one year in the school, but those who resort to the 
school at the commencement of their studies, will not be expected 
to appear as candidates until the end of two years. Whether this 
is in the interest, either of the school, or of sound legal learning, I 
do not presume to judge. 

Again, the Circular of 1870-71 specifies eleven elective studies. 
The student may elect seven of these. He may, of course, omit four 
of them, and is not required to be examined on those omitted. 
And as Jurisdiction and Procedure in Equity, Bailments, Agency, 
Negotiable Paper, Partnership, and Corporations, are found in the 
list, he may escape examination in any four of these six, which he 
pleases. Supposing the examination, therefore, to be " searching 
and thorough " so far as it extends, it may, at most, only show that 
the student has made a successful beginning in the study of the law, 
and he may know little of some of its most important topics. 

Perhaps it may be found to deserve consideration, whether a 
regenerated Moot-court should not be held, to determine the ques- 
tion, — Can the degree, founded on such an examination, operate as 
conclusive evidence of the final redemption of the School from its 
fallen state ? 



NOTE B. See page 45. 

REPORT OF THE PROFESSORS TO THE COMMITTEE OF OVERSEERS 
APPOINTED TO VISIT THE SCHOOL IN 1863. 

To the Committee appointed by the Overseers of Harvard College to 
visit the Law School. 

The Professors in that Department have the honor to report : 

That the School has continued during the year now closing under 
the same superintendence which has existed for several years past 
without any essential change in the mode of instruction. 



52 APPENDIX. 

Lectures have been delivered by the Royall Professor upon 
Pleading, Constitutional Law, Bailments, Corporations, and Equity 
Jurisprudence ; by the Dane Professor upon Blackstone and Kent's 
Commentaries, the Law of Shipping, Marine, Fire, and Life In- 
surance, and International Law ; and by the Bussey Professor upon 
the Law of Real Property, Arbitrament and Award, Criminal Law, 
the Domestic Relations, Wills and Administration, and Professional 
Ethics. 

The course of Instruction adopted by the wisdom of their prede- 
cessors, after a large experience, is believed to be well adapted to 
the wants of the young men who desire to avail themselves of the 
advantages of the School, and the Professors have been slow to risk 
innovations. The instruction therefore is still carried on mainly by 
means of Lectures and Moot-courts, with an exemplification of the 
principles under consideration by cases propounded for solution. 
These, with a careful study of the text-books, and the Clubs formed 
by the students for mutual discussion, furnish full employment, even 
for the most studious. 

Competition for prizes offered for Dissertations, while it undoubt- 
edly tends to the acquisition of special knowledge respecting the 
subject under investigation, necessarily withdraws the student some- 
what from the course of his general studies, and, except in a few 
cases, it may admit of question how far, upon the whole, the offer of 
prizes tends to the benefit of those who write for them. 

In like manner the Professors have hesitated to make any essen- 
tial change in the mode in which the students have access to the 
books in the Law Library, or in the means adopted for its security, 
notwithstanding the strictures which have been made and published 
upon that subject in the reports of the sub-committee of the Com- 
mittee appointed to visit "the Library" — not the Law Library. 
The Professors are not disposed to raise a question upon the visita- 
tions of this sub-committee upon "the Library." They are pleased 
to receive from any quarter valuable suggestions in relation to the 
preservation of the Law Library. They may say, however, that 
there is a committee (the present committee) appointed for the 
express purpose of visiting the Law School, — its Library as well as 
all other of its Departments, — and they must express some surprise 
at the remarks which have been made upon the subject, in the 
reports alluded to, and to add, that the sub-committee could not 
have been fully aware of the probable results of their recommenda- 
tions if they had been adopted. The increased expenses which 
would have been incurred if the measures recommended for the 



APPENDIX. 53 

security of the Law Library by the sub-committee in 1861 had 
been adopted, would have far exceeded the value of all the books 
lost during the year which followed, and, in the belief of the Pro- 
fessors, such measures would have tended rather to increase the 
losses than to diminish them. Ever since the foundation of the 
School, so far as the Professors are aware, the students have been 
permitted to have free access to the books ; and this appears to be 
necessary in order to give them the advantages which they expect 
to derive from the use of them. It is one of the inducements to 
enter the School. It must be quite apparent to any one who con- 
siders the subject carefully, that with such use of the books, the 
Library cannot be placed under restrictions similar to those adopted 
in libraries which are resorted to merely for the purpose of taking 
out books, or for occasional limited perusal in the Library itself; 
and it must therefore from the nature of the case be exposed to 
greater dangers. The whole subject was fully discussed with the 
committee appointed to " visit the Law School " last year, and the 
course pursued, it was understood, had their unanimous approba- 
tion. 

The report of the Librarian will show the condition of the 
of the Library for the year ending in July last, and tend to the cor- 
rection of some errors in previous reports. He gave, it seems, 
somewhat more of attention to the security of the Library than his 
predecessors, and he says, " Students were in some cases detected 
in removing books without permission, and the lecture-room was 
found to be the avenue through which books find their way out of 
the building. Immemorial custom has made this course law, and 
it is quite difficult to check it. The course was to ascertain def- 
initely the volume taken, and to allow an opportunity to return it, 
which in all cases was done." 

But there is no reason to doubt that in the instances which the 
Librarian thus speaks of, the books would have been returned in 
good faith, even if they had been taken to the lecture-room, and 
thence to the student's room, without any record of them. It is 
not probable that there was one case among them, in which there 
was a design to pilfer, and it is mainly from cases of this last charac- 
ter that loss is sustained. 

Notwithstanding all the care of the past year, it is undoubtedly 
true that if persons had been disposed to steal the books, they could 
have accomplished their object. And we may superadd, that with- 
out incurring an expense altogether out of proportion to the danger, 
or restricting the use of the Library in a manner greatly to diminish 
its usefulness,' it is impossible that it should be otherwise. 



54 APPENDIX. 

The number of missing volumes, during the last Academic year, 
is five. The number during the previous year was nineteen, several 
of which were returned. 

The sub-committee do not seem to have been aware that the 
books in the Law Library are not only stamped with the words 
" Harvard Law Library " on the back, but that such stamp is also 
placed upon several of the leaves of each volume, extending through 
the volume ; and that this plan for the security of the Library was 
adopted many years since. 

The Professors have the pleasure of stating that the very serious 
reduction of the number of students, occasioned by the war, no 
longer continues, although the attendance at the present time is 
hardly equal to the average attendance for several years prior to 
1861 ; the whole number the present term being one hundred and 
twenty-eight. 

Joel Parker, Royall Professor. 
Theophilus Parsons, Dane Professor. 
Emory Washburn, Bussey Professor. 
Dane Hall, December 36, 1863. 



NOTE C. See page 46. 

REPORT OF THE COMMITTEE APPOINTED TO VISIT THE LAW 
SCHOOL, TO THE OVERSEERS. 

To the Honorable and Reverend Board of Overseers of Harvard College. 

Your Committee appointed to visit the Law School respectfully 
report, that upon notice from the President of the College, they 
visited the Law School on the 30th of December last. Nearly 
every member of the Committee was present, and met the Pro- 
fessors of the School and conferred with them upon their duties, 
and the interests of the charge committed to them. While in 
Cambridge the committee attended a lecture by the Royall Pro- 
fessor, Judge Parker, to a large number of students, and were 
entirely satisfied that both the matter and manner of it, were admi- 
rably calculated to impress and improve the students who listened 
to it. The School seems now to be prosperous, and your Committee 
are satisfied with the prescribed course of study, and that the duties 
of the Professors are most ably and conscientiously discharged. 

Our attention was called by the Faculty of the Law School to 
complaints made by a sub-committee of your Committee to visit the 



APPENDIX. 55 

Library, that books were lost from the Library of the Law School • 
and we examined the rules and methods adopted to regulate the 
use of the library, by the students. We are satisfied that every 
proper precaution was taken to prevent loss of books, and that no 
larger number was lost, than must always be expected, if books are 
used at all. Your Committee would deprecate exceedingly the im- 
position of any more or further restrictions upon the use of the 
Library, by the students. This subject was called to the attention 
of last year's Committee, and they were unanimously of opinion, that 
the strictures of the sub-committee were uncalled for, and so re- 
ported substantially to the Board of Overseers. Your Committee 
of this year were surprised that the sub-committee of the Library 
Committee should have insisted upon their strictures, against the 
unanimous opinion of the Faculty of the Law School, and of the 
Committee of your body appointed specially to visit that School. 
At any rate, your Committee are decidedly of opinion, that it is the 
duty of the Professors of the Law School to entirely disregard the 
strictures and advice of the sub-committee referred to, and adhere 
to the course they have adopted to regulate the use of the Law 
library by the students, and took occasion to express that opinion to 
the Professors. 

The reports of the Faculty of the Law School, and of the Libra- 
rian of the Law Library, are herewith transmitted. 

All which is respectfully submitted. 
J. G. Abbott, Chairman, 

in behalf of ike Committee. 



NOTE D. See page 46. 



The share of the income from Mr. Bussey's estate, credited to 
the school in 18G8-69, amounted to $6,543.01 ; in 1869-70 to 
$8,517.65. The Corporation allowed the school in 1868-69, for 
income from Mr. Royall's legacy, $575.91, from Mr. Dane's dona- 
tion $1,087.50, and from Mr. Foster's legacy $218.98, instead of 
the sums heretofore stated as the income from those sources. The 
income from the Royall and Dane funds, accounted for in 1869-70 
was somewhat less ($1,537.22), but the School appears, from the 
Treasurer's Statement, to have been delivered from the charge for 
the College library. It can afford, therefore, to expend $1,2*49.77 - 
for advertising in 1868-69, and $651.69 in the last year, — to add to 



56 APPENDIX. 

the salaries of its Professors, — increase its library, — and provide 
for a large corps of Lecturers. 

With these enlarged means, and having escaped from that mis- 
chievous degree, by which it was doing something every year to 
injure the profession, its glories in the future must of course eclipse 
all its antecedents. 

But it is rather unseemly for the worshipper of the rising sun, at 
the very time when he pays his morning devotions, to kick at him 
because he did not shine with equal lustre when he set the preced- 
ing evening. 



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